14.06. Sexual Relations Between Lawyer and Client [Rule 1.8(j)]

It is unethical for a lawyer to commence a sexual relationship with a client after the attorney-client relationship is formed.  There are two main reasons this is unethical.  First, the client may be in a vunerable position and reliant on the lawyer – and the lawyer could use the position of trust to induce a sexual relationship.  Second, after the relationship is formed, the lawyer’s independent judgment may be compromised by the sexual relationship (the lawyer may do what it takes to maintain the relationship even if it is not in the client’s best interests).  The concern of overreaching is so great, a client cannot consent to the lawyer continuing to represent her:  “Because of the significant danger of harm to client interests and because the client’s own emotional involvement renders it unlikely that the client could give adequate informed consent….”[1]

If the client is an organization the lawyer represents the organization and not the employees of the organization.  Since a lawyer cannot have a sexual relationship with an organization, does this rule apply at all when a lawyer represents an organization?  Yes.  The lawyer is prohibited from commencing “a sexual relationship with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.”[2]

You may notice that the rule only prohibits a lawyer from continuing representation when the sexual relationship begins after representation is commenced.  In the situation where a sexual relationship began before the representation, a lawyer should look to Rule 1.7(a)(2) to determine whether the lawyer should represent the person.  Recall that Rule 1.7(a)(2) provides that a lawyer has a conflict of interest if the lawyer’s representation would be “materially limited” by the lawyer’s personal interests.  Here, a lawyer would have to determine whether the lawyer could truly provide independent representation or whether decisions would be influenced by the lawyer’s relationship with the sexual partner.[3]

Lowell Lawyer works at a small firm that specializes in family law issues.  One day Christine Client comes in seeking a divorce.  Client is a stay at home mom and is completely dependent upon her husband.  A month after Client retained Lawyer they begin a consensual sexual affair.  After the divorce proceedings became extremely contentious, Lawyer told Client that he had a conflict of interest and that she would have to choose between him as a lover and him as a lawyer.  Because Client could not afford to hire a new lawyer, she agreed to cut off the sexual relationship – but they remained close.  As the divorce proceedings continued, Client became financially destitute and Lawyer loaned Client $60,000 – to be paid back out of the proceeds from selling the marital home.  There was no documentation about the loans.  After Client received the money from the sale of the marital home, she refused to give any money to Lawyer.  Lawyer became so upset that he sent a text message threatening to reveal confidential information about her to her husband.  Client told the managing partner of Lawyer’s firm everything.  Has Lawyer acted unethically? [Law Society of Upper Canada v. Macri, 2017 ONLSTH 19 (Oct. 21, 2016)]

Yes.  First, once the sexual relationship commenced, Lawyer should have withdrawn from representing Client.  Note, however, that Lawyer could have turned the file over to another lawyer in his firm.  The conflict of interest because of a sexual relationship is not imputed to all other lawyers in the firm – it is considered personal to the lawyer.[4]  Here, however, Lawyer continued to represent Client which is an ethical violation.  Notice also that Lawyer entered into a business transaction with Client (the loan) and did not follow the requirements set out in Rule 1.8(a).  Finally, Lawyer also violated Rule 1.8(b) – by threatening to use harmful confidential information of the client in an attempt to force Client to pay her bill.  In this case the lawyer was suspended for 2 ½ months.

It is important to note that even if a jurisdiction has not adopted the Rule 1.8(j) prohibition, the conduct could still be unethical.  In those jurisdictions the situation is analyzed under Rule 1.7(a)(2).  That rule prohibits a lawyer from representing someone where the lawyer would be materially limited in representing a client because of (among other things) “a personal interest of the lawyer.”  A sexual relationship could compromise the lawyer’s representation of the client – causing the lawyer to make decisions to maintain the relationship even if not in the best interest of the client.

Joshua Reeves received a telephone from a potential client – C.S.  C.S. wanted a divorce from her husband.  A meeting was set up and C.S. revealed that she did not have the money to pay a fee.  She left the meeting saying that she would try to find money for the fee.  C.S. called back and said that she was ready to file for divorce, and when Reeves asked about payment she said that her financial condition had deteriorated.  In response, Reeves sent a Snapchat message which stated:  “I think I have a solution…”; “A free one…”; “And we can start the proceedings asap.”  Subsequently in Snapchap messages, Reeves proposed that C.S. have sex with Reeves and send nude pics:  “once or twice a week you just… take care of me I suppose while trying to get the divorce done.  Maybe some snaps.  That’s about it.”  C.S. reported Reeves to the disciplinary authority.  Illinois has not adopted Rule 1.8(j) prohibiting sex with clients.  Has Reeves acted unethically? [In re Reeves, 2018 WL 6132442 (Nov. 8, 2018)]

Yes.  Even though Illinois has not adopted Rule 1.8(j), a lawyer still cannot continue representation when the representation would be limited by the lawyer’s own interest.  Here, the lawyer’s interest in obtaining sexual favors would limit the lawyer’s ability to represent the client.  How?  The relationship could cause the attorney to lose objectivity in representing the client – and recommend actions not in the best interest of the client to maintain the relationship.  The attorney also risks becoming a witness in the underlying divorce action on issues of adultery.[5]  In addition, it is a crime in Illinois to offer anything of value to perform a sexual act.  Therefore, the lawyer also violated Rule 8.4(b) which provides that it is misconduct for lawyer to “commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects.”  Note that this was misconduct even though the lawyer was not prosecuted for the crime.

[1] ABA Rule 1.8, Comment [17].

[2] ABA Rule 1.8, Comment [19].

[3] ABA Rule 1.8, Comment [18].

[4] ABA Rule 1.8(k).

[5] See Va. State Bar Standing Committee on Legal Ethics, Op. 1853 (Dec. 29, 2009).