Many attorneys have some sort of personal relationships with their clients. Many consider their clients to be good or even close friends. Others may be related by blood or marriage to their clients. More rare is the personal relationship between attorney and client that is romantic or sexual in nature. These are the stories that sometimes make the press: media outlets may highlight those scintillating stories laying out the details of intimate relationships between attorneys and clients. In addition to potentially harming these lawyers’ reputation and ability to practice, these relationships can create non-trivial exposure for the attorneys’ law firm and partners.
The circumstances in which an attorney may be punished for his or her personal relationships with clients vary by jurisdiction. Some states have something akin to a ban on attorneys and clients beginning romantic relationships. In Texas, courts have looked with disapproval on family law attorneys engaging in intimate relationships with their clients that they represent during a divorce proceeding. In another instance, where an attorney had an affair with his client’s wife, the court found the attorney’s actions were “abhorrent for a member of our profession.” The State bar association disciplined the attorney for that conduct.
But Texas is also one of the only states to find that a sexual relationship between a judge and an attorney does not necessarily create a conflict of interest.
Beyond purely disciplinary sanctions for attorneys engaged in improper personal relationships with clients, there can be financial consequences as well. For example, in another case involving a divorce, an attorney was forced to forfeit 3 million dollars in fees when his former client–lover brought a breach of fiduciary duty case against him.
Given these serious risks, some law firms are beginning to adopt rules prohibiting their attorneys from engaging in intimate relationships with clients. While ethical rules and advisory opinions in most states generally do not require a law firm to take such affirmative steps, the law firm may conclude that the preceding risks arising from an attorney’s intimate relationship with a client can impact the law firm as a whole. Nonetheless, many lawyers and law firms will take note of the following considerations when evaluating their exposure from attorney-client intimate relationships.
Terminating the Representation Will Greatly Reduce the Risk
As a starting point, Texas does not outright prohibit attorneys from being involved with their clients. However, an attorney may still be at risk for sanctions if the initiation of a personal romantic relationship with a client would implicate a conflict or suggest that the attorney is exuding undue influence on the client. Therefore, when faced with this situation, many attorneys will balance their financial interest in maintaining a legal representation versus their personal interest in beginning a new intimate relationship with their client. Many conclude that the safest option is generally to end the representation once an intimate relationship has begun to blossom.
Even though terminating an attorney-client relationship will not eliminate every risk inherent in becoming involved with a former client, it is generally less risky than simultaneously pursuing the representation and romance and having to later prove that the two relationships could ethically co-exist. Many attorneys will also consider reaching out to their law partners or colleagues for perspective on the situation or a possible referral for the representation.
Check The Rules of Professional Conduct
Texas has not adopted some form of ABA Model Rule 1.8(j), which explicitly prohibits sexual relationships between an attorney and client once a representation has begun. (This Rule recognizes that attorneys and clients in pre-existing relationships, such as spouses, may not pose the same risk to a representation.) The Model Rule and most states, however, do not adopt an express prohibition against an attorney from representing a client with whom he or she has had an ongoing intimate relationship before the representation began.
A referendum of the members of the State Bar of Texas overwhelmingly voted to reject a “no sex with clients” proposed rule in 2011. But an attorney’s sexual relations with a client may in some circumstances still be deemed to violate the ethical rules governing conflicts of interest.
Texas Disciplinary Rule of Professional Conduct 1.06(b)(2) provides that “a lawyer shall not represent a person if the representation of that person: . . . reasonably appears to be or become adversely limited by the . . . lawyer’s or law firm’s own interests.” A lawyer’s own interests in an intimate relationship with the client can, in some circumstances, adversely limit their representation of the client. In those situations, an attorney may be found to have breached the Rules of Professional Conduct by engaging in an intimate relationship with their client while continuing the legal representation.
Whether an intimate relationship has created a conflict of interest generally depends on the totality of the circumstances. Comment 13 to the Texas Rule notes that “Conflicts of interest in contexts other than litigation sometimes may be difficult to assess. Relevant factors in determining whether there is potential for adverse effect include the duration and intimacy of the lawyer’s relationship with the client or clients involved . . . The question is often one of proximity and degree.”
Further, Comment 17 to the Rule reminds that while it is “primarily the responsibility of the lawyer undertaking the representation” to raise the conflict of interest, opposing counsel may do so as well. It is not difficult to imagine a scenario in a divorce proceeding, for example, in which opposing counsel, upon the insistence of their aggrieved client, could raise the issue of counsel dating a soon-to-be-divorced client in a divorce proceeding.
Attorney-Client Sexual Relations Pose Significant Risks
For many lawyers and law firms, the exposure created by engaging in an intimate relationship with a prospective or current client may not be worth pursuing such a relationship. In addition to bar grievances and breach of fiduciary claims, for which the risk can be high, there is also the risk that the attorney’s or firm’s professional liability insurance might not provide coverage for claims arising out of this conduct.
Regardless of the facts, if an intimate relationship develops during an ongoing attorney-client representation, there is a presumption that the attorney used his or her advantage of the special trust and confidence in the position of authority over a “vulnerable client,” all to the attorney’s personal advantage.
For all of these reasons, most attorneys will carefully consider whether it is worth the risk of engaging in an intimate relationship with a client.
Shari L. Klevens is a partner at Dentons and serves on the firm’s US Board of Directors. She represents and advises lawyers and insurers on complex claims and is co-chair of Dentons’ global insurance sector team. Alanna Clair is a partner at Dentons and focuses on professional liability defense. Shari and Alanna are co-authors of “The Lawyer’s Handbook: Ethics Compliance and Claim Avoidance.”