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ETHICS SPOTLIGHT
Laura W. Morgan, Esquire This month's "Ethics Spotlight" will focus on the question of whether it is ethically permissible for a domestic relations attorney to have a sexual relationship with his/her client. Most states have adopted ABA Model Rules of Professional Conduct. The remainder have adopted the ABA Model Code of Professional Responsibility. The Rules and the Code are intended to prescribe a lawyer's professional responsibilities in a larger legal context, including court rules and statutes. Because the sanctions imposed for violation of a rule are punitive in nature, the ethical provisions are to be strictly construed in favor of the party charged with their violation. Turning first to the Model Rules, Rule 1.8 prohibits the use of client confidences to the detriment of the client. Rule 2.1 requires an attorney to use his best independent professional judgment. Rule 8.4(a) provides that it is professional misconduct for a lawyer to violate the Model Rules of Professional Conduct. Rule 8.4(d) further provides that it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.
Specifically relevant to the present discussion, Rule 1.7(b) provides:
Turning next to the Model Code, Canon One prescribes the Code's basic moral standards. EC 1-2 states that the public should be protected from those who are not qualified to be a lawyer by reason of deficiency in education or moral standards. EC 1-5 advises attorneys to maintain high standards of professional conduct and to refrain from all illegal and morally reprehensible conduct. DR 1-101 mandates the maintenance of integrity and competence in the legal profession. Particularly relevant to the present discussion, DR 1-102 provides:
(A) A lawyer shall not:Further relevant to the present discussion, EC 5-1, addressing conflict of interest, states that an attorney breaches the duty of loyalty to the client if the attorney acts with self or adverse interest. DR 5-101(A) makes it improper to accept employment if the exercise of the attorney's professional judgment on behalf of the client will be affected by the attorney's own personal interests. Finally, DR 7-101(A)(1) requires a lawyer to represent a clent zealously and not prejudice the rights of the client, and ED 9-6 asks an attorney to conduct himself or herself so as to reflect credit on the legal profession.. . .
While the Model Rules and the Model Code have not specifically dealt with the question of the ethical propriety of an attorney engaging in a sexual relationship with a client, many individual states have begun to grapple with the ethical propriety of an attorney engaging in a sexual relationship with a client while the attorney is representing the client's cause. Some states have considered adopting explicit ethical rules governing lawyers' sexual relations. E.g., Cal. Bus. & Prof. Code § 6106.9; Fla. Sup. Ct. R. 4-8.4(i); Ill. Sup. Ct. R. 1.17; Minn. Sup. Ct. R. 1.8(k); Or. Code Prof. Resp. DR 5-110. Most states and the ABA, however, have dealt with the issue by way of ethical opinion or disciplinary proceeding rather than rule. See generally Brill, Sex and the Client: Ten Reasons To Say No!, 33 Santa Clara L. Rev. 651 (1995); Livingston, When Libido Subverts Credo: Regulation of Attorney-Client Sexual Relations, 62 Fordham L. Rev. 5 (1993); Davis & Grimaldi, Sexual Confusion: Attorney-Client Sex and the Need for a Clear Ethical Rule, VII Notre Dame Journal of Law, Ethics & Public Policy 57 (1993); O'Connell, Keeping Sex Out of the Attorney-Client Relationship: A Proposed Rule, 92 Colum. L.Rev. 887 (1992); Forell, Lawyers, Clients and Sex: Breaking the Silence and the Ethical and Liability Issues, 22 Golden Gate U.L. Rev. 611 (1992); Annotation, Sexual Misconduct as Ground for Disciplining Attorney or Judge, 43 A.L.R.4th 1062 (1986). In the ABA Standing Comm. on Ethics and Professional Responsibility, Formal Op. 92-364 (issued July 6, 1992), Law. Man. on Prof. Conduct (ABA/BNA) § 1001:122, the committee declined to conclude that any sexual relationship with a client would be a violation of the Model Rules of Professional Conduct or the Model Code of Professional Responsibility. Instead, the committee stated:
[T]he Committee concludes that because of the danger of impairment to the lawyer's representation associated with a sexual relationship between lawyer and client, the lawyer would be well advised to refrain from such a relationship. If such a sexual relationship occurs and the impairment is not avoided, the lawyer will have violated ethical obligations to the client. Thus, a violation of the Rules occurs only when the sexual relationship impairs the lawyer's representation of the client. Accord Suppressed v. Suppressed, 206 Ill. App. 3d 918, 565 N.E.2d 101 (1990) (court declines to hold that in every attorney-client relations there is duty to refrain from intimate personal relationships). In particular, a lawyer has violated Rules 1.7(b), 1.8(a), and 1.8(b) where a lawyer exploits the trust and confidence a client places in an attorney in order to initiate a sexual relationship:
If the lawyer permits the otherwise benign and even recommended client reliance and trust to become the catalyst for a sexual relationship with a client, the lawyer may violate one of the most basic ethical obligations, i.e., not to use the trust of the client to the client's disadvantage.Law. Man. on Prof. Conduct (ABA/BNA) § 1001:125. A lawyer has also violated Rule 2.1 where the sexual relationship impairs the lawyer's objectivity and reasonableness that form the basis of the lawyer's independent professional judgment. Similarly, a lawyer has violated Rule 1.7(b) where the sexual relationship interferes with the decisions that must be made for the client. In accordance with this formal opinion are the opinions and decisions of various states which hold that an attorney violates the governing ethical rules by engaging in a sexual relationship with the client only where the lawyer's representation of the client has been impaired by violations of Rules 1.7(b), 1.8(a)- (b), and 2.1.
One instance in which an attorney violates ethical rules is where the attorney makes unsolicited sexual advances to a client who is involved in divorce or custody litigation. In this case, the attorney is taking advantage of a client in a vulnerable emotional state. More importantly, the attorney may be jeopardizing the client's divorce case by engaging in adultery, or may be jeopardizing the client's custody case by impinging on the client's fitness as a parent. E.g., People v. Zeilinger, 814 P.2d 808 (Colo. 1991) (although client suffered no actual harm, affair between lawyer and divorce client was adverse to client's interest; the affair destroyed chances for reconciliation, blinded attorney to proper exercise of judgment, and subjected attorney to danger that he may be called as witness relative to fitness as parent); In re Lewis, 262 Ga. 37, 415 S.E.2d 173 (1992) (affair with divorce client, although consensual, violated ethical rules because it advanced lawyer's interests over those of client; client was adversely affected because affair was in context of divorce, and could have been used against her); Iowa State Bar Association Committee on Professional Ethics & Conduct v. Hill, 436 N.W.2d 57 (Iowa 1989) (attorney must realize that in divorce case, reconciliation is possible, and affair may destroy those chances; sexual liaison between lawyer and divorce client could affect custody determinations and prejudice both the client and the minor children of the marriage); Kentucky Bar Association v. Meredith, 752 S.W.2d 786 (Ky. 1988) (lawyer's personal and emotional involvement with client clouded his judgment concerning client's fitness as parent to children); In re Frick, 694 S.W.2d 473 (Mo. 1985) (affair with divorce client advances lawyer's interests over client's); Otis' Case, 135 N.H. 612, 609 A.2d 1199 (1992) (sexual relationship with divorce client creates possibility that client's interests may be materially limited by lawyer's interest); In re Drucker, 133 N.H. 326, 577 A.2d 1198 (1990) (sexual relations with emotionally vulnerable client while representing her in a divorce and custody proceeding); In re Bourdon, 132 N.H. 365, 565 A.2d 1052 (1989) (attorney assured client that custody hearing would be successful instead of warning her of potential problems resulting from their sexual involvement); In re Rudnick, 177 A.D.2d 12, 581 N.Y.S.2d 206 (1992) (sexual relationship with matrimonial client took advantage of client's position); Edwards v. Edwards, 165 A.D.2d 362, 567 N.Y.S.2d 645 (1991) (it is proper for attorney to withdraw from representation of divorce client when that attorney becomes sexually involved with client); Lehr v. Lehr, 36 Or. App. 23, 583 P.2d 1157 (1978) (court responded negatively to wife's child custody petition because of evidence she was sexually involved with her attorney); In re McDowr, 291 S.C. 468, 354 S.W.2d 383 (1987) (attorney's actions clearly caused harm to client where attorney's affair with divorce client resulted in husband being granted divorce on grounds of adultery); In re Gibson , 124 Wis. 2d 466, 369 N.W.2d 695 (1985) (unsolicited sexual advances to divorce client took advantage of her emotional state). Accord People v. Good, 893 P.2d 101 (Colo. 1995); People v. Bergner, 873 P.2d 726 (Colo. 1994); People v. Crossman, 850 P.2d 708 (Colo. 1993); In re Goldsborough, 654 A.2d 1285 (D.C. 1995); In re Tante, 264 Ga. 692, 453 S.E.2d 688 (1994); In re Rinella, 175 Ill. 2d 504, 677 N.E.2d 909 (1997); Iowa Disciplinary Board v. Hill, 540 N.W.2d 43 (Iowa 1995); In re Howard, 912 S.W.2d 61 (Mo. 1995); In re Gould, 207 A.D.2d 98, 620 N.Y.S.2d 491 (1995); In re McClure, 204 A.D.2d 853, 612 N.Y.S.2d 265 (1994); Disciplinary Counsel v. DiPietro, 70 Ohio St. 3d 391, 643 N.E.2d 1145 (1995); In re DiSandro, 680 A.2d 73 (R.I. 1996); In re DiPippo, 678 A.2d 454 (R.I. 1996); In re Hawkins, 320 S.C. 57, 463 S.E.2d 92 (1995) (sex with client's wife); Musick v. Musick, 192 W. Va. 527, 453 S.E.2d 361 (1994); In re Kraemer, 200 Wis. 2d 547, 546 N.W.2d 186 (1996); Kansas Bar Association Ethics Advisory Opinion 94-13 (1995); Oklahoma Bar Assoc. Legal Ethics Opinion 308 (1994); Legal Ethics Committee of the Oregon State Bar Opinion 1995-140 (1995).
Another instance in which an attorney violates ethical rules by having a sexual relationship with the client is where the sexual encounter is in lieu of fee or is nonconsensual. A client who retains an attorney expects that the lawyer will conduct business in a manner consistent with his professional obligations. Demanding sex in lieu of a fee or making continued representation contingent upon a sexual relationship is not consistent with the professional obligations of a lawyer. Moreover, forcing sexual advances on a client may be a criminal assault, and as such violates the prohibition against engaging in conduct involving moral turpitude. E.g., People v. Crossman, 850 P.2d 708 (Colo. 1993) (unsolicited sexual advances to client harms client, as it perverts the essence of the fiduciary nature of the attorney-client relationship); Florida Bar v. Samaha, 557 So. 2d 1349 (Fla. 1990) (attorney's request for nude photographs of female personal injury client akin to battery); Idaho State Bar v. Williams, 122 Idaho 404, 834 P.2d 1320 (1992) (unsolicited sexual touching of client is equivalent to battery, and is thus breach of fiduciary duty to client); In re Adams, 428 N.E.2d 786 (Ind. 1981) (lawyer offered to reduce fee in exchange for sexual favors); In re Wood, 358 N.E.2d 128 (Ind. 1976) (attorney's demand for nude photographs of female client in lieu of payment was violation of ethics); In re Stanton, 103 N.M. 413, 708 P.2d 325 (1985) (unsolicited criminal sexual contact warranted discipline as involving moral turpitude); Dayton State Bar Association v. Sams, 41 Ohio St. 3d 11, 535 N.E.2d 298 (1989) (demand for sex and illegal drugs in lieu of payment of legal fees constituted moral turpitude); In re Hicks, 20 P.2d 775 (Okla. 1933) (attorney disbarred for engaging in sexual relations with a mentally retarded woman who did not have the capacity to consent); In re Howard, 297 Or. 174, 681 P.2d 775 (1984) (attorney accepted sexual services from prostitute in lieu of payment); In re Discipline of Bergren, 455 N.W.2d 856 (S.D. 1990) (clients led to believe fees would be reduced if they succumbed to attorney's sexual advances); see also Barbara A. v. John G., 145 Cal. App. 3d 369, 193 Cal. Rptr. 422 (1983) (client stated cause of action against attorney who impregnanted her for deceit and battery where she consented to have sex on the false representation that he was sterile). Where, however, the sexual relationship is not coercive, i.e., it was not solicited by the attorney during the course of representation, the relationship does not prey on a vulnerable client, and the relationship does not result in any impairment of the attorney's duties under ethical rules, then such a relationship is not, in and of itself, a violation of ethical rules. This point was made in Op. 1987-92 of the Standing Comm. on Professional Responsibility and Conduct of the State Bar of California. In this opinion, the committee stated:
A lawyer may engage in a sexual relationship with a client so long as the lawyer's independent professional judgment remains uncompromised, client confidence is maintained, the client is able to consent to the sexual relationship, the client is able to maintain independent judgment in the professional relationship, and the lawyer is careful to preserve client secrets and avoid the possibility of undue influence in either the personal or professional relationship. Opinion 88-1 of the Ethics Comm. of the Alaska Bar Association made the same point. In this opinion, the committee stated that a sexual relationship between a lawyer and client is prohibited only in the following circumstances: (1) when the lawyer initiates the relationship and the client's ability to make a free choice is impaired; (2) when the lawyer performs legal services in exchange for sexual favors; (3) when the sexual involvement inhibits the lawyer's ability to protect the client's interests; (4) when the sexual relationship adversely affects the client's emotional stability; and (5) when the sexual conduct is illegal. The opinion expressly stated that a sexual relationship between an attorney and client is not prohibited when the attorney and client are engaged in a consensual ongoing relationship that began prior to the professional relationship. Accord Opinion 92-6 of the Ethics Comm. of the Alaska Bar Association; Opinion 1991-93 of the Legal Ethics Committee of the Oregon State Bar. ABA Formal Op. 92-364, as well as the various decisions and ethics opinions of various states compel the conclusion that where a sexual relationship between an attorney and client is totally consensual, does not involve a divorce or criminal matter, and is not undertaken in lieu of payment, then the relationship does not in any way impair the interests of the client, and does not in any way impair the professional diligence of an attorney. Laura W. Morgan is a Senior Attorney in Family Law at the National Legal Research Group, in Charlottesville, Virginia, a firm that writes memoranda and briefs for attorneys nationwide. Ms. Morgan is the author of "Child Support Guidelines: Interpretation and Application," and is currently Chair of the Child Support Committee of the American Bar Association Family Law Section. She can be reached at: goddess@supportguidelines.com, or phone 1-800-727-6574 or 1-804-977-5690
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