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OBA Ethics Counsel

Ethics Opinion No. 308

Adopted December 9, 1994; Withdrawn: March 17, 1995

[The Board withdrew the following Legal Ethics Opinion No. 308 and requested the OBA Legal Ethics and Unauthorized Practice Committee to restudy the opinion.]

INQUIRY

May a lawyer engage in a sexual relationship with a client, or a client's representative, during the time when the lawyer is engaged in an ongoing attorney/client relationship?

OPINION

The Oklahoma Bar Association Legal Ethics Committee was asked to determine whether a lawyer, who engages in a sexual relationship with his client, or client's representative, during his professional attorney/client employment, is unethical. We find that such conduct is unethical, except in the situation involving a spouse.

The Rules of Professional Conduct do not specifically prohibit a sexual relationship between an attorney and client, or require withdrawal from representation once a lawyer becomes sexually involved with a client. However, the general rules pertaining to the attorney/client relationship apply to the specific circumstances in determining whether the lawyer has acted unethically by becoming sexually involved or by not withdrawing from representation once a sexual relationship with a client develops. The general fear is that an intimate relationship with a client may compromise the attorney's exercise of independent professional judgment in the rendering of candid advice during the representation.

Providing Competent Representation:

Rule 1.1 in part, states: "A lawyer shall provide competent representation to a client...." While an intimate relationship with a client may not automatically impede the ability of an attorney to provide competent, zealous representation, the danger of indirect harm or prejudice to the client's case exists. For example, if the relationship is disclosed in the courtroom during a contested child custody case, a client may be prejudiced. Similarly, if a spouse or ex-spouse of the client learns of the relationship, the client's settlement position may be compromised. In such circumstances, the attorney's conduct may play a significant factor in denying the client the full benefit of the assistance and advice normally available in traditional attorney/client relationships.

Furthermore, involvement in such a sexual relationship may prevent either party from fully exercising their independent judgment concerning the case. Since the attorney relies on the client to define the objectives of his representation, this may affect the attorney's ability to competently represent the client.

Exercising Independent Professional Judgment:

Rule 2.1 provides: "In representing a client, a lawyer shall exercise independent professional judgment...." If an attorney makes decisions, in part, based upon a personal involvement with a client, it is violative of the Rules of Professional Conduct and grounds for discipline. This is particularly true in situations where the attorney, in attempting to preserve a personal relationship, takes action or renders advice which is not in the client's best interest.

Avoiding Conflict of Interest:

Rule 1.7(b)(2) declares:

"A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person, or by the lawyer's own interest, unless:

(a) The lawyer reasonably believes the representation will not be adversely affected; and

(b) The client consents after consultation ....

Becoming engaged in a sexual relationship without first warning and advising the client of the potential adverse effects of such relationship or without obtaining the client's consent is a direct violation of this rule. Additionally, where a reasonable lawyer would conclude that the lawyer's interest would inevitably affect the representation, the client's consent cannot operate as a waiver of the lawyer's conflicting interest.

Additionally, Rule 1.8(b) states: "A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, ..." Accordingly, a lawyer who utilizes confidential client information to pursue a sexual relationship violates this rule; particularly in circumstances where the attorney acts upon vulnerabilities disclosed by the client, in an attempt to manipulate the client into a sexual relationship. The clients involved in domestic, child custody, criminal and pro bono cases are especially vulnerable to the use of this information.