Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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What are the ethical considerations of a lawyer engaging in a sexual relationship with a client?
No California Rule of Professional Conduct expressly prohibits a lawyer from having a sexual relationship with a client. However, such conduct could in some circumstances give rise to a violation of rules 6-101 or 5-102. In addition, such conduct might present a question as to a client's ability to consent to a sexual relationship and also could detrimentally impact on the client's ability to render independent judgments in the professional relationship. Finally, such conduct must be evaluated in light of Business and Professions Code section 6068.
Rules 5-102 and 6-101 of the California Rules of Professional Conduct of the State Bar of California.
Business and Professions Code section 6068.
This opinion addresses the ethical issues raised in California when a lawyer engages in a sexual relationship with a client. The California Rules of Professional Conduct govern the conduct of lawyers in their professional capacity and generally do not encompass activities which are ordinarily private in nature, such as sexual activities. However, when they involve a client and could detrimentally impact on the lawyer's ability to competently perform the legal services which are the subject of retention, such activities are subject to ethical scrutiny.
At the outset, we recognize that the situations in which such a relationship could occur are numerous and cannot all be anticipated or addressed in this opinion. It is precisely because each sexual relationship may be characterized by a distinct set of circumstances (e.g., the maturity of the parties, client vulnerability, nature of the subject matter of retention) that we do not believe that a lawyer-client sexual relationship would per se impair the lawyer's ability competently to perform the legal services required.1
This preliminary conclusion, however, should not be construed as tacit approval for such conduct.
We caution that any lawyer should seriously contemplate all of the possible personal and professional ramifications attendant to such a relationship, for even the most competent of lawyers may find it difficult to insulate sound judgment from the emotion or bias which may result from a sexual involvement. Interpersonal issues that can arise in the sexual context may spill over to the professional relationship. For example, termination of a personal relationship may be perceived as a professional rejection or vice versa.
The following analysis does not deal with behavior which would constitute sexual misconduct, since such conduct is governed by the moral turpitude standards codified in the Business and Professions Code sections 6101 and 6128 and case law. (See Chefsky v. State Bar (1980) 36 Cal.3d 116; Fall v. State Bar (1944) 25 Cal.2d 149, 160.)
There is no California Rule of Professional Conduct which expressly governs the propriety of sexual relationships between lawyer and client. Therefore, we initially look for guidance to those rules which set a standard of conduct that would have the closest application to this issue. Rule 6-101(A) requires an attorney to act competently. The standard of competence is defined as "the application of sufficient learning skill and diligence necessary to discharge the member's duties." Additionally, the rule prohibits a lawyer from accepting employment or continuing to represent a client when the lawyer does not have, or will not acquire before performance is required, sufficient time, resources and ability to perform the matter with competence. Finally, rule 6-101(B)(1) requires a member, when he or she may lack any of the foregoing qualities, to "professionally consult with another lawyer who the member believes is competent."2
The definition of the term "ability" as provided in rule 6-101(C) which includes an attorney's mental, physical, and emotional capacities, appears pertinent to our analysis since emotion is the aspect of a lawyer's ability most likely impaired by virtue of sexual conduct.
A number of scenarios in the context of domestic relations representation illustrate how emotions triggered by sex with a client could impact the objectivity or emotional detachment essential to the lawyer's ability to render competent legal services.3 In a dissolution proceeding, a lawyer may be requested to explore the feasibility of a reconciliation between the parties. If successful, this would likely end the sexual relationship between the attorney and client. The lawyer might not pursue reconciliation with the same zealous commitment that might otherwise be evident were there no emotional attachment or fear of a loss of a personal benefit. On the other hand, the lawyer might pursue a reconciliation more strenuously than might be appropriate to bring about the end of a personal relationship with the client which the lawyer no longer desires.
Similarly, a dilemma might arise in the context of a custody battle where a client's custody of children is being challenged on the grounds of fitness due to a lack of stability in relationships or sexual promiscuity. Under these circumstances, if a lawyer has a sexual relationship with the client, the role of the lawyer in the matter would surely be complicated. The client who desires to contest the charges or is called to testify in the proceedings will face questions about his or her extra-marital sexual relationships that may lead to the disclosure of the affair with the lawyer. Such a revelation could have a crucial result for the client. Moreover, if the lawyer is married and the lawyer-client sexual relationship were clandestine, the fear that disclosure will impact on the lawyer's own marriage may cause the lawyer deliberately or unconsciously to dissuade the client from contesting the charges or testifying in the matter.
The same bias could arise even if the lawyer is not married or fear of disclosure was not of concern. For example, if the lawyer is living with the client, there may be a preference that the children move out or that the client relinquish custody. Whatever the nature or source of the lawyer's preference, it could constitute a subtle bias which could impact on the professional advice given.4 Conversely, if the lawyer becomes emotionally entangled with the client and the client's children through such a relationship, the lawyer may overzealously pursue custody for his or her own personal gratification when a more objective lawyer might advise the client to give up custody.
In some situations, the sexual relationship itself could serve as an obstacle to a lawyer's effectiveness. In a settlement proceeding, if the spouse of the client having sex with the lawyer learns of the sexual relationship, the spouse may be provoked to the point of retaliation and refuse to approve what would otherwise have been a successful settlement.5
Common to all of these hypotheticals is the potential for bias that could arise from the sexual relationship. In light of the concerns expressed, we must conclude that whenever a sexual relationship with a client is contemplated, a lawyer must always confront the threshold question of whether having sex with the client will affect his or her ability to competently represent the client. If so, rule 6-101 would prohibit the lawyer from entering into a sexual relationship while engaged in representation of that client unless the lawyer associates or professionally consults another lawyer who is reasonably believed to be "competent."
Moreover, if at the time the sexual relationship was commenced, the lawyer does not believe it would impair the ability to perform competently, but subsequently finds his or her judgment is or could be affected by emotional factors, rule 6-101 (B)(1)(2) requires another lawyer be associated or consulted who is reasonably believed to be "competent" for purposes of rule 6-101.
An attorney's sexual activity with a client could give rise to a violation of rule 5-102. That rule requires that, where the attorney may have an interest in the subject matter of employment, adequate disclosure must be made to the client and written consent obtained.6
Rule 5-102 seeks to remove the possibility of "self-dealing" that may arise when the lawyer has any interest in the subject matter of employment by requiring safeguards in the form of disclosure and consent. Although the rule usually arises in matters where the "interest" is pecuniary in nature, there are no words of limitation which preclude application to situations where the "interest" consists of a personal benefit derived from a sexual relationship with a client.
For example, if a lawyer represents a husband and wife and has a sexual relationship with one of them, that could give rise to an "interest" which would require disclosure to the other client. Where a lawyer is drafting wills for a married couple and has a sexual relationship with one spouse, the same analysis would apply. A lawyer could develop a sexual attachment toward one spouse which could serve to undermine or compromise the loyalty which would otherwise have been extended to the other spouse. In this context, the bias toward one spouse could work to the detriment of the other and disclosure would be required.7
Equally serious is the application of rule 5-102 in the context of a child custody proceeding, where in addition to rule 6-101, a lawyer would have to consider the implications of an "interest" for purposes of rule 5-102. If the lawyer is living with or seeking to live with a client who wants custody of the children, the lawyer could have an "interest" in the subject matter since the lawyer may not, for personal reasons, want the client to be awarded custody. Moreover, the attorney should consider that such a liaison may itself jeopardize the client's legal claim to custody of the children, since a court might consider such an extra-marital relationship in its assessment of parental fitness.
These are some of many examples of the potential conflicts which can arise in the context of rule 5-102. Whatever the unique factual circumstances of a potential sexual relationship, the lawyer should take whatever steps necessary to ensure that appropriate disclosure and consent are properly obtained when so warranted.
We note also that both rules 6-101 and 5-102 may overlap in those factual situations where a lawyer's "interest" in the subject matter for purposes of rule 5-102 could result in a lack of emotional objectivity which could be also construed as an impairment of "ability" for purposes of rule 6-101. Thus, even if the requirements of disclosure and consent are met for purposes of rule 5-102, that would not obviate the possible violation of rule 6-101 by reason of incompetence.
Another aspect of a lawyer's relationship with a client which must be examined is the lawyer's duty to preserve the confidence or trust of the client. As was stated by the California Supreme Court in two of its earliest decisions, "[t]he relation between an attorney and client is a fiduciary relation of the highest character and binds the attorney to the most conscientious fidelity." (Cox v. Delmas (1893) 99 Cal. 104.) . . . The most fundamental quality of the attorney-client relationship as the absolute and complete fidelity owed by the attorney to the client...an attorney should be a paragon of candor, fairness, honor, and fidelity in all his dealings with those who place their trust in his ability and integrity and he will at all times and under all circumstances be held to the full measure of what ought to be." (Sanquinetti v. Rosen (1906) 12 Cal.App. 62, 630.) Thus a lawyer may not take any actions which would serve to dilute or compromise the duty of fidelity owed on a professional level.
An attorney-client relationship is also a confidential relationship which has been defined as "any relation existing between parties... where a confidence is reposed by one person in the integrity of another and in such a relation the party in whom confidence is reposed, the confidence, can take no advantage from his (or her) acts relating to the interest of the other party without the latter's knowledge or consent:" (Barbara A. v. John G. (1983) 145 Cal.App.3d 369, 382.)
Thus, the essence of either a fiduciary or confidential relationship is one where the parties do not deal on equal terms because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party. (Barbara A. v. John G., supra, 145 Cal.App.3d, 369, 383.)
While it is clear that the professional relationship between a lawyer and client is fiduciary, the courts have expressly declined to extend that duty, as a matter of law, to other personal relationships between such parties.
The case of Barbara A. v. John G. involved a plaintiff/client who had had sex with her attorney and after suffering an ectopic pregnancy, sued him for deceit and misrepresentation based on her reliance on his representation to her that he was sterile. The Court of Appeals reversed the trial court's decision to dismiss for failure to state a claim. As was noted by the court in Barbara A.:
"The unique facts in the case before us compel a more cautious approach in imposing on respondent as a matter of law, the highest fiduciary standard in all of his relations with the appellant, social as well as legal." (Barbara A. v. John G., supra, 145 Cal.App.3d 369, 383.)
Despite this narrow holding, the court in Barbara A. left no doubt that, even if not strictly fiduciary, a lawyer-client relationship based on a personal, social, or moral basis can nonetheless be "confidential," the effect of which would obligate the attorney to act in the utmost good faith for the benefit of the other party. The court indicated that the existence of the confidential relationship would be an issue of fact in establishing liability to the aggrieved client, noting that the mere possibility of a factual determination of a court should be a sufficient warning to the attorney in his or her personal or social relations with clients. (Barbara A. v. John G., supra, 145 Cal.App.3d, 369, 384.)
The warning by the Court of Appeal in Barbara A. hints at the key danger which could result from the simultaneous occurrence of professional and sexual relationships: not all clients may be able to separate the confidence reposed in the lawyer while acting as legal counsel from the trust implicit in a personal relationship.
The confidence extended in the professional relationship may spillover or be transferred by the client, even if unconsciously from one relationship to the other. There are two distinct considerations which could result from a client's transference from one relationship to the other. First, because of the very nature of the trust and confidence which is inherent in a fiduciary relationship such as that of lawyer and client, a clients consent to a sexual relationship may be unduly influenced by the professional relationship. Second, there is the possibility that an ongoing sexual relationship may debilitate a client's ability to exercise independence of judgment necessary to preserve the integrity and confidence of a professional relationship (as distinguished from the attorney's judgment, which was discussed above in relation to rule 6-101).
The possibility that a client may transfer the confidence derived from the professional relationship to the sexual relationship should cause a lawyer to question the client's ability to consent to the sexual relationship. The cause for concern may be greater in those cases where the lawyer has initiated or suggested the idea of having the sexual relationship. If the sexual relationship has been initiated while the professional relationship is on-going, there may be an element of undue influence in obtaining the client's consent. Would the client's consent be truly voluntary, or would it be based on a fear of retaliation that the lawyer may withdraw from the case or may compromise his or her efforts because he or she is angry with the client for refusing? This point was recently made in a case based on disciplinary action taken against a lawyer who had made unsolicited sexual advances in the form of conversations with a client who, ironically, had sought the lawyer's services to obtain a temporary restraining order against a physically abusive husband. The court stated:
"... (T)he public must not be subjected to unsolicited sexual conduct by attorneys in the context of the attorney-client relationship. Frequently, the client is in some difficulty and is particularly vulnerable to improper advances made by the attorney. The client rightfully looks upon the attorney as a legal advisor, one who will act in her best interests. Often a client will be reluctant to terminate representation in response to an attorney's improper conduct for fear of losing time and money already invested in the representation. The attorney is a fiduciary who should exercise professional judgment solely for the benefit of the client. By making unsolicited sexual advances, the attorney perverts the very essence of the lawyer-client relationship." (In Re Gibson (1985) 124 Wis.2d 466 [369 N.W. 2d 695].)
Just as the professional relationship may spill over on the sexual relationship, thereby affecting the client's ability to consent, the converse may be true: the emotions of the sexual relationship could be transferred to the professional relationship. Although the lawyer is chiefly responsible for accomplishing the client's objectives, it is the client who must define the objectives and make final decisions within the professional relationship. A client's involvement with a lawyer in a sexual relationship may create emotions or bias which may create a bias or cloud the client's own independence of judgment.
For example, it is conceivable that a client may accede to a legal course of conduct solely as a means of prolonging the sexual relationship with the lawyer. The client may forego a favorable settlement offer which otherwise would have been accepted since it could sever the client's contact with the lawyer and therefore signal the end of the sexual relationship with the lawyer. In other situations, the client's ability to make a reasoned, deliberate and independent decision on the merits of a specific proposal may be compromised by the desire to preserve the sexual relationship or to defer to the lawyer-sex partner. The client may simply be influenced by concerns to avoid disagreements with the lawyer which could sour the sexual relationship, and thus the client may lose the vital ability to decide for himself or herself within the professional relationship.
Although some clients may have no difficulty in separating the confidence placed in the lawyer professionally from the expectations arising from the sexual relationship, this may not always be the case. The variables involved in the clients ability to separate the professional relationship from the sexual include the client's sophistication, maturity, degree of passivity, or naivete in personal relationships. Obviously, the lawyer should carefully consider any indications of client vulnerability which might suggest that a client's actions or decisions affecting the sexual relationship would be unduly influenced by the lawyer's professional capacity or that the client's actions or judgments concerning the Professional engagement may be unduly influenced by the sexual affair.
For example, when the subject matter of representation involves some form of sexual abuse of the client, that should alert the lawyer that a client may have a high degree of vulnerability. This client may have been subjected to original injury as a result of the inability to detect the proper limitations of confidence and trust. A client with a propensity to be "too trusting" may perceive the lawyer as a "savior" who will do no harm in any respect and is, therefore, apt to assume that this trust or confidence would extend to all aspects of any relationship with the lawyer, including sex.
If a lawsuit arises in regard to the representation of such a client, the client may then seek to argue that the lawyer took advantage of the client both sexually and professionally. In that event, as implied by the court in Barbara A., the lawyer's actions in the sexual relationship may be scrutinized as would those occurring in any other confidential relationship and the lawyer may be faced with the burden of rebutting the presumption of undue influence in the inducement of the sexual relationship. Likewise, the client may challenge the lawyer's handling of his or her professional responsibilities while involved in a sexual relationship claiming that the sexual relationship compromised the lawyer's independence of judgment. In that event, the courts have made clear that any time that a lawyer has advanced his or her own self-interest possibly at the expense of a client's trust or confidence, the court will carefully scrutinize the lawyer's actions. (See Magee v. State Bar (1962) 58 Cal.2d 423, 431; Clancy v. State Bar (1969) 71 Cal.2d 140.)
Business and Professions Code section 6068, subdivision (e) requires the attorney "to maintain inviolate the confidence and at every peril to himself preserve the secrets of his or her client." The term "secrets" has been deemed to include "other information gained in the professional relationship that the client has requested be held inviolate or the disclosure of which would be embarrassing or would be likely to be detrimental to the client." (State Bar of California Committee on Professional Responsibility and Conduct Opinion 1984-71; American Bar Association Model Code D.R. 4-101.)
There are numerous matters in which the sexual conduct of a client may become a vital factual issue. These may be as diverse as a child custody dispute, a civil suit following a rape charge, or a sexual harassment case against an employer or supervisor. In a lawsuit based on sexual harassment, the employer may contend that the client provoked, enticed, or somehow elicited the objectionable conduct. A client's sexual behavior might be at issue and therefore, the lawyer may have to view the ongoing sexual relationship as a "secret" for, if disclosed by the lawyer, it could be severely detrimental to the client's case.
In addition, subsection (g) of section 6068 provides that an attorney may not "encourage either the commencement or the continuance of an action or proceeding from any corrupt motive of passion or interest." A lawyer having sex with a client should take care not to commence or prolong a matter so as to continue contact with a client for sexual purposes.
The Committee seeks to respect the division, however unclear, between the private and professional lives of lawyers. A per se ban on any sexual relationship with a client appears overly broad and unnecessary. On the other hand, the opinion reflects the Committee's concern for the welfare of the client and the professional integrity of the lawyer so involved. The rules cited above and the hypothetical situations outlined illustrate the many perils of a sexual relationship between lawyer and client.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities or any member of the State Bar.
1 For example, a per se rule would seriously affect the ability of an attorney to represent his or her own spouse.
2 Rule 6-101 provides in pertinent part:
(A)(1) Attorney competence means the application of sufficient learning, skill, and diligence necessary to discharge the member's duties arising from employment or representation.
(2) A member of the State Bar shall not intentionally or with reckless disregard repeatedly fail to perform legal services competently.
(B) Unless the member associates or where appropriate, professionally consults another lawyer who the member reasonably believes is competent, a member of the State Bar shall not:
(1) Accept employment or continue representation in a legal matter when the member knows that the member does not have, or will not acquire before performance is required, sufficient time, resources, and ability to perform the matter with competence, or
. . .
(C) As used in this rule, the term "ability" means a quality or state of having sufficient learning and skill and being mentally, emotionally, and physically able to perform legal services. (Emphasis added.)
3 Legal services in domestic relations have been the primary if not sole focus of those existing out-of-state ethics opinions on the propriety of lawyer-client sex. (See Oregon Ethics Ops. Nos, 427 and 475; Maryland Ethics Op. No. 84-9.) These opinions, some of which are referred to below have noted the highly emotional and personal nature of such representation in dissolution or child custody and probably the high emotional vulnerability of clients faced with such problems.
This was the basis for Oregon Ethics Op. No. 475, which found that a lawyer's sexual conduct would not be proper when child custody or settlement issues are involved:
The lawyer representing one spouse in a dissolution proceeding cannot know with certainty whether a reconciliation is possible or is in the best interest of the client, or how the possibility of reconciliation might be affected by an affair between the lawyer and client.
4 These facts also suggest a possible violation of rule 5-102 as discussed infra.
5 Oregon Ethics Op. No. 429 determined that if the lawyer's conduct could aggravate the other spouse so as to hinder settlement efforts, then the lawyer-client sexual conduct was improper. Oregon Ethics Op. No. 475 opines:
Nor can the lawyer know with certainty what reaction the client's spouse would have to learning that the lawyer is having an affair . . . or how such knowledge might affect the negotiation of property rights and, if children are involved, the right to custody.
6 Rule 5-102 provides in pertinent part:
(A) A member of the State Bar shall not accept professional employment without first disclosing his relation, if any, with the adverse party, and his interest if any in the subject matter of employment. A member of the State Bar who accepts employment under this rule shall first obtain the client's written consent to such employment. (Emphasis supplied.]
This rule embraces the concerns also reflected in Canon 5 of the American Bar Association Model Rules: "A Lawyer Should Exercise Independent Professional Judgment On Behalf Of A Client". Those rules also state:
The professional judgment of a lawyer should be exercised within the bounds of the law solely for the benefit of his client and free of compromising influences and loyalties. [Neither] his personal interests should be permitted to dilute his loyalty to his client. (Ethical Consideration 5-1.)
A lawyer should not accept proffered employment if his personal interests or desire will, or there is a reasonable probability that they will affect adversely the advice to be given or services to be rendered. (Ethical Consideration 5-2.)
7 Although beyond the scope of this opinion, the Committee suggests that attorneys exercise caution regarding engaging in a sexual relationship with the spouse of a client. For example, engaging in a sexual relationship with the spouse of a client that the attorney represents in a criminal matter could lead to questions regarding the zeal with which the matter is handled because the incarceration of the client would eliminate an obstacle to the continuation of the relationship between the attorney and the spouse of the client.
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