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OBA Ethics Counsel

Ethics Opinion No. 311

Adopted October 16, 1998

TOPIC: SEXUAL RELATIONS[FN1] WITH A CLIENT[FN2]

INQUIRY: Will a lawyer who engages in sexual relations with a client violate the Rules of Professional Conduct "Rules" if the lawyer has no pre-existing consensual sexual relationship[FN3] with the client?

ABSTRACT: By engaging in sexual relations with a client, when no consensual sexual relationship preceded the lawyer/client relationship, a lawyer will more likely than not violate one or more of the Rules.

OPINION

The Oklahoma Bar Association Legal Ethics Committee was asked to determine whether a lawyer, who engages in sexual relations with a client when no consensual sexual relationship predates the lawyer/client relationship, violates the Rules. In our opinion, there is a significant probability that such conduct will result in a violation of one or more of the Rules.[FN4]

The Rules do not expressly prohibit sexual relations between a lawyer and a client or require withdrawal from representation prior to a lawyer engaging in sexual relations with a client. However, the Rules apply to specific circumstances in connection with a determination as to whether a lawyer acted ethically by engaging in sexual relations with a client. Such conduct may (i) jeopardize the lawyer's ability to competently represent the client; (ii) involve unfair exploitation of the lawyer's fiduciary relationship with the client; (iii) compromise the lawyer's exercise of independent professional judgment in the rendering of candid advice during the representation; (iv) create a conflict between the interests of the lawyer and the interests of the client; (v) jeopardize the lawyer-client privilege with respect to confidences imparted; and (vi) be prejudicial to the administration of justice.

Competent Representation

Rule 1.1 states: "A lawyer shall provide competent representation to a client..." While sexual relations with a client may not directly impede the ability of a lawyer to provide competent representation, the danger of indirect harm or prejudice to the client exists. For example, if evidence of sexual relations between a lawyer and a client is disclosed during a contested child custody case, the client will likely be prejudiced. Similarly, if a spouse or ex-spouse of the client learns that sexual relations with the lawyer have occurred, the clients settlement position may be compromised. In such a circumstance, the lawyers conduct may play a significant factor in denying the client the full benefit of the assistance normally available in a traditional lawyer/client relationship. In addition, the competency of the representation may be compromised by violation of the principles underlying one or more of the Rules discussed in the following sections of this opinion.

Fiduciary Relationship

Rule 1.8(b) states: "A lawyer shall not use information relating to the representation of a client to the disadvantage of the client. . . . Similarly, Rule 1.8(a) treats business transactions between a lawyer and a client as inherently suspect. The Comment to Rule 1.8 states that: As a general principle, all transactions between client and lawyer should be fair and reasonable to the client."

The fiduciary obligation which underlies the provisions of Rule 1.8(a) and (b) and the Comment to Rule 1.8 requires that a lawyer not take advantage of a client for any purpose, including abusing a clients trust by taking sexual advantage of the client. The obligation of the lawyer to avoid engaging in sexual relations with a client increases proportionally to the vulnerability of the client. Such vulnerability may result from the clients emotional state, age, social status, educational level, or the nature of the matter being handled by the lawyer for the client.

Independent Professional Judgment

Rule 2.1 provides: "In representing a client, a lawyer shall exercise independent professional judgment. . . ." If a lawyers advice to a client is based, in part, upon an effort to initiate or to promote sexual relations with a client, the lawyer violates the Rules. Sexual relations with a client may undermine the objective detachment which is a normal incident of independent professional advice. This is particularly true in situations where the lawyer, in attempting to initiate or to promote sexual relations, takes action or renders advice which is not in the clients best interests.

Conflict of Interest

Rule 1.7(b)(2) states:

A lawyer shall not represent a client if the representation of that client may be materially limited by . . . the lawyers own interests, unless:

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

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

In the opinion of the Committee, a reasonable lawyer, in most instances, would conclude that the lawyers interests relating to sexual relations with a client would adversely affect the lawyer/ client relationship. Clearly, the lawyer/client relationship is adversely affected when the lawyers interests in sexual relations interfere with the lawyers ability to provide candid advice to the client. In such a case, a clients consent to sexual relations will not operate as an informed or effective waiver of the lawyers conflicting interests.

A lawyer who is considering sexual relations with a client should carefully consider whether such behavior would create conflicts of interest or any harm to the client or to the representation. If there is reasonable possibility that representation of the client may be impaired or the client harmed by the lawyer engaging in sexual relations with the client, the lawyer should withdraw from the representation.

Confidential Information

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 . . ." Thus, a lawyer who utilizes confidential client information to pursue sexual relations with a client violates this rule --- particularly in circumstances where the lawyer acts upon client vulnerabilities to manipulate the client to participate in sexual relations. Clients in domestic, child custody, criminal and pro bono cases are especially prone to such manipulation.

Prejudicial to the Administration of Justice

Rule 8.4(d) states: "It is unprofessional conduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." The Oklahoma Supreme Court has held that exploiting a client for sexual pleasure violates this rule. State of Oklahoma ex rel. Oklahoma Bar Assn v. Miskovsky, 938 P.2d 744, 749 (Okla. 1997).

Case Law

The Court has relied upon one or more of the Rules discussed in this opinion to discipline lawyers for use of sexually explicit language with a client[FN5] ; offensive touching of a client [FN6] ; and uninvited sexual advances towards a client.[FN7]

1. "Sexual relations" means: (a) one or more acts of sexual intercourse; or (b) touching a sexual or other intimate part of another person or causing or permitting such person to touch a sexual or other intimate part of the lawyer for the purpose of arousing or gratifying the sexual desire of either or both parties.

2. "Client" includes, during the course of a lawyer/client relationship: (a) an individual who is a client; and (b) a clients representative who acts on behalf of an individual or an organizational client (client representative) (e.g., trustee, guardian, employee, shareholder, officer, or agent).

3. "Sexual relationship" means an established course of sexual relations.

4. In addition, it is our opinion that, in cases where a consensual sexual relationship precedes the lawyer/client relationship, the lawyer should strictly scrutinize his or her behavior for conflicts of interest to determine if harm may result to the client or to the representation. A consensual sexual relationship which predates a lawyer/client relationship may, in some circumstances, raise the same ethical problems addressed in this advisory opinion. When the client is an individual, who has no client representative, or an organization acting through its sole principal, with no other representative, the likelihood of a violation resulting from sexual relations during the course of the lawyer/client relationship is considerably less when a sexual relationship precedes the lawyer/client relationship. See State of Oklahoma ex. rel. Oklahoma Bar Association v. Andre, 1998 OK 29 (April 14, 1998) (attorney who represented his spouse was not disciplined for an alleged conflict of interest for representing his wife in a post-divorce dispute concerning visitation and custody rights of his step-daughters biological father, but was disciplined for harassing a witness who gave adverse testimony). In the case of a pre-existing consensual relationship with a client's representative, where the representative is not the sole principal of an organizational client, the potential for an ethical violation is high, because the lawyer's personal interests may impair his ability to represent the client or may cause harm to the client. In such a circumstance, the lawyer should withdraw from the representation, cease the sexual relationship, or make disclosure of the sexual relationship, in the case of an individual client, to the individual or, in the case of an organization, to higher, responsible authority, and proceed with the representation only with consent of the client. See Rule 1.13. Even with disclosure by the lawyer and consent by the client, the lawyer may ethically proceed with the representation only in the event he or she reasonably believes the representation will not be adversely affected. Rule 1.7(b)(1).

5. State of Oklahoma ex rel. Oklahoma Bar Assn v. Miskovsky, 1997 OK 55, 938 P.2d 744 (Okla. 1997).

6. State of Oklahoma ex rel. Oklahoma Bar Assn v. Copeland, 970 P.2d 776 (Okla. 1994).

7. State of Oklahoma ex rel. Oklahoma Bar Assn v. Sopher, 852 P.2d 707 (Okla. 1993).