Dear Ethics Corner:
I am a newly divorced lawyer who has a busy business litigation practice. I work long hours, especially during trial, and I don’t have much of a chance of meeting single men outside of the office. I tried Match.com but found that many men post pictures that are dated (read: when they had hair to their shoulders and weighed forty pounds less) and lie about their age and jobs. The other day I was at my client’s office – he is the VP for a large tech company - and he asked me out to lunch. It became more than a business lunch – we talked about our lives, our children and our favorite movies. He called the next day and asked me to dinner. Should I go out with him, or is this a bad idea?
Legally Lustful in Concord
Dear Legally Lustful:
This is actually a tough question because you are a business litigator who would be dating someone that is a “sophisticated client”. Under California Rule of Professional Conduct 3-120 an attorney can have sexual relations with a client. Coercion, intimidation and undue influence by the attorney are prohibited, but that is less likely with a client who is the VP of a large company. Many states like Minnesota, North Carolina and Wisconsin have complete bans on sexual relationships with clients, citing the fact that sex with a client can never be consensual because of the unequal relationship between the attorney and a vulnerable client. Other states ban it only in criminal law and family law practices. Each state has their own unique characteristics.
California was the first state to enact a Rule regarding attorney-client sexual relations. The Bar Board was concerned not so much with how attorneys conduct their private lives but with the loss of detachment and objectivity that can result when a lawyer manifests personal feelings for his client.
Lustful, I would recommend that if you intend on dating your client, you do it now before Rule 3-120 changes. The new proposed Rules of Professional Conduct are now before the California Supreme Court and could be passed any day. If so, the new Rule will place a complete ban on sexual relations with a client that don’t predate the attorney-client relationship.
I testified at the Rule Commission hearings in favor of that ban, only because every time I have represented a lawyer in trouble for having sex with his client it ends up being a “he said, she said” battle over whether the sex was coerced, and the lawyer rarely wins. There was some concern at the hearings for the proposed Rule 3-120 about the constitutional right to privacy; our state Constitution has an explicit right to privacy and case law makes clear that sexual conduct is a private matter. The proposed Rule would have to pass strict scrutiny to be upheld because privacy is a fundamental right. The current Rule, which allows sex with clients, is arguably more narrowly tailored to address any harm brought on by quid pro quo or coerced sex. So it is not abundantly clear to me that the proposed Rule, if challenged, would pass constitutional muster. States that have adopted the ABA Rule banning sex with clients have not encountered a challenge because those states don’t have an explicit right to privacy.
We already have bans for doctors and psychotherapists, and those bans have been upheld. Think of the tough row to hoe to challenge the rule; a lawyer would probably have to be disciplined for having sex with a client, then the case would have to go all the way up to the California Supreme Court. The publicity that would ensue would be tough. I do think, however, that an ideal test case would be an in-house or business lawyer like you who becomes social friends with her corporate client and then falls in love.
But Lustful, you probably don’t want to be the test case. Wait until the representation is over (she said joylessly). If the guy loves ya, he’ll wait. Keep in mind that you risk civil liability on various theories that will surely dampen your ardor. Claims are based on civil battery, deceit, and intentional infliction of emotional distress. Legal malpractice is another avenue of recovery but can be hard to prove where the lawyer may have handled the case well but, for example, made the client angry by ending the sexual relationship.
There are a few civil cases out there where the lawyer went way too far but most cases settle before trial. Civil cases often arise out of an underlying domestic relations matter handled by the lawyer.
Lustful, try McCovey’s in Walnut Creek on a game day. You’ll do better there than in the office of your client.
Very Truly Yours,
The Ethics Corner
Carol M. Langford is an attorney in Walnut Creek specializing in ethics and State Bar discipline matters. She is also a lecturer of professional responsibility at U.C. Berkeley Boalt Hall School of Law this semester.
Filed Under: Ethics Corner