I have written about economic entanglements with clients. Lundberg, Economic Entanglements Between Lawyers and Clients, Vol. 51, No. 8 Res Gestae 36 (April 2008).  What about emotional entanglements?  Notorious Texas trial lawyer, Joe Jamail, was recently quoted in the ABA Journal as saying, “Today’s law schools teach students how not to get emotionally involved in their cases. That’s bullshit.  If you are not emotionally involved, your client is not getting your best effort.”

I take Jamail’s point, but I think he only had it about half right. Clients need loyalty, commitment and competence from their lawyers, but when emotional involvement with clients or their cause impairs sound professional judgment, the lawyer fails the client.  Rule of Professional Conduct 2.1 makes this point: “In representing a client, a lawyer shall exercise independent professional judgment and render candid advice.”  By telling clients only what they want to hear, the lawyer does them no favor.

Sexual Conflicts

What I have in mind to discuss here is a different kind of emotional involvement with clients. Not excess zeal for their cases, but lust for their bodies and other emotional entanglements that risk impairing professional duty.  The Indiana Supreme Court has considered clients to be sexually off limits since 1976, when it first opined that such involvements create personal interests at odds with competently serving their legal needs. Matter of Woods, 358 N.E.2d 128 (Ind. 1976).

For many years, sex between lawyers and clients was analyzed under general conflict of interest standards. In 1996, the Supreme Court gave a clear rationale for why lawyers must eschew sexual involvement with clients:

In their professional capacity, lawyers are expected to provide emotionally detached, objective analysis of legal problems and issues for clients who may be embroiled in sensitive or difficult matters. Clients, especially those who are troubled or emotionally fragile, often place a great deal of trust in the lawyer and rely heavily on his or her agreement to provide professional assistance.  Unfortunately, the lawyer’s position of trust may provide opportunity to manipulate the client for the lawyer’s sexual benefit.  Where a lawyer permits or encourages a sexual relationship to form with a client, that trust is betrayed and the stage is set for continued unfair exploitation of the lawyer’s fiduciary position.  Additionally, the lawyer’s ability to represent effectively the client may be impaired.  Objective detachment, essential for clear and reasoned analysis of issues and independent professional judgment, may be lost.

Matter of Grimm, 674 N.E.2d 551, 554 (1996).

Moreover, the Court rejects the idea that sex with a client is impermissible only if it actually impairs the lawyer’s representation.  Matter of Tsoutsouris, 748 N.E.2d 856, 859 (Ind. 2001).

Because The Rule Says So

This was the state of affairs until January 1, 2005, when the Supreme Court promulgated Rule of Professional Conduct 1.8(j): “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when a client-lawyer relationship commenced.” Although seemingly clear, it is noteworthy that “sexual relations” is not defined.  We don’t have to reach too far back into history to recall President Bill Clinton’s ambiguous denial of the nature of his relationship with White House intern, Monica Lewinsky, when he famously stated, “I did not have sexual relations with that woman.”  After the sordid details of the President’s relationship with Lewinsky came out, his denial was much ridiculed, and many believed that he outright lied when he took an indefensibly narrow view of “sexual relations” as describing only the act of coitus.

As it stands, “sexual relations” for purposes of Rule 1.8(j) remains undefined. The question is whether any lawyer wants to be the guinea pig for testing the outer limits of that definition.  Caution would seem to be the watchword here.

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Sexual relations, however defined, with clients, however sophisticated, are off limits as a species of conflict of interest. The question inevitably arises whether it is waivable by a fully informed client.  General concurrent conflicts of interest described in Rule 1.7 are consentable in all but objectively unreasonable circumstances.  However, Rule 1.8(j) does not recognize the possibility of client waiver of conflicts founded on lawyer-client sexual relationships.  In other words, no matter how well-informed the client and well-documented the decision, a client cannot consent to the continuation of a lawyer-client relationship once it takes a sexual turn.

The lawyer who becomes sexually involved with a client may not continue to represent the client. May another lawyer from the same firm take the matter over?  In a word, yes.  Rule 1.8(k) provides that all Rule 1.8 conflicts, except the one prohibiting sex with clients, are imputed to other lawyers in the same law firm.  So when a relationship with a client becomes personally intimate, the client’s legal matter may be referred elsewhere within the same law firm.  If a Rule 1.8(k) conflict is also a Rule 1.7 conflict, is that conflict imputed to the lawyer’s law firm, thereby prohibiting another lawyer in the firm from taking over the client’s matter?  While most Rule 1.7 conflicts are imputed to all lawyers in a firm, conflicts that are “based on a personal interest of the prohibited lawyer and [that do] not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm” are not.

Sometimes It Hurts To Ask

 If sex with a client is off limits, so is merely trying to score. In Matter of Bash, 880 N.E.2d 1182 (Ind. 2008), a lawyer unsuccessfully pursued a personal relationship with a client by trying to kiss her and then sending her sexually explicit e-mail messages.  The creepiness of Bash’s approach aside, the Court found that he violated Rule 8.4(a) by attempting a sexual relationship with a client that, had it been consummated, would have violated Rule 1.8(j).

 Corporate Sex

An odd twist on the no-sex-with-clients rule, untested by case law, is raised by Comment [19] to Rule 1.8. It answers a question that few have even thought to pose: may a lawyer have sex with a corporation, and if the corporation is a client, is it prohibited?  Obviously, a lawyer cannot literally have sex with a corporate client, but a sexual relationship with an agent of a corporate client is possible.    If the corporate agent is one who “supervises, directs or regularly consults with the lawyer concerning the organization’s legal matters,” a sexual relationship with that person is off limits.  For example, an associate at a law firm that is outside counsel for a corporation may not commence a sexual relationship with a lawyer in the corporation’s general counsel’s office if the associate is working on a corporate matter and the in-house counsel is supervising, directing or regularly consulting on the matter.

It’s Not Just About Sex

Lawyers are not prohibited by Rule 1.8(j) from representing someone with whom they have a pre-existing, consensual sexual relationship. So a lawyer is not necessarily prohibited from handling a legal matter for a spouse or intimate partner.  This is not to say that it would always be proper or prudent to do so.  Recall the early sex-with-clients cases, where the Court’s rationale was that the personal involvement risks compromising the lawyer’s duty to provide candid and dispassionate advice.

In a sense, the no-sex rule is a crude proxy for the broader notion that any time a lawyer’s personal relationship with a client detracts from the lawyer’s ability to competently serve the client’s interests, the lawyer has a conflict of interest under Rule 1.7(b). That rule prohibits representations where there is a significant risk that the client’s interests will be materially limited by the lawyer’s personal interests.  This does not mean that a lawyer can never represent a spouse or intimate partner in a new legal matter.  Only that caution should be exercised to make sure that it is not a representation that could be impaired by the emotional intimacy, sexual or otherwise, between lawyer and client.

I describe the no-sex rule as a “crude proxy” because it is simultaneously too broad and clearly too narrow to address the real underlying concern. It is arguably too broad because it does not allow for the possibility that a sexual relationship with a client might have no negative impact on the representation.  This is only a theoretical point, however, because, as explicitly stated in Tsoutsouris and as implicitly bound up with the idea of non-consentability, the Supreme Court closed the door to the argument that the legal representation was not actually impaired by the sexual involvement.

All In The Family

The prohibition is too narrow in the sense that focusing solely on Rule 1.8(j) loses track of all the other ways, having little or nothing to do with sex, wherein emotional involvement with a client might impair the representation. Take the simple case of a lawyer who defends a spouse in a suit for damages.  The spouse qua lover, might need emotional support, but the spouse qua client needs independent and candid legal advice.  The lawyer may be incapable of doing both.

Matter of McClure, 652 N.E.2d 863 (Ind. 1995) illustrates this.  McClure was defending his wife in a suit for damages.  A stressful and contentious deposition culminated when McClure, believing his wife to have been unfairly treated by deposing counsel, threw a soft drink on opposing counsel and grabbed him around his neck.  Lawyers should always be ready to take appropriate action to protect their witnesses when unfairly attacked in a deposition.  But it seems as though McClure’s assessment of the provocation and the appropriateness of his reaction were skewed by his personal relationship with his client.  His conduct may have scored points on the domestic front for gallantry, but he lost them as a legal professional.

Forewarned Is Forearmed

Lawyers may understand intellectually that sex with clients is a bad idea, but we are emotional creatures, too. Nobody else will believe it, but my fellow lawyers know that we all need emotional intimacy just as much as the next person.  When we are thinking emotionally or, let’s face it, hormonally, our powers of logical reasoning are not at their sharpest.  When we find ourselves dining in a dimly lit restaurant with an attractive client, the Rules of Professional Conduct will be the furthest things from our minds.  That’s why I recommend that every lawyer have the text of Rule 1.8(j) tattooed on a buttock or some such place as a prominent reminder of professional duty, even when clothes are shed.[1]

Enough silliness. Thinking through these issues before being faced with a real-life situation might provide the presence of mind for lawyers to keep relationships with clients on a professional level, or failing that, refer those clients to other counsel before proceeding further.

[1] Business lawyers should ask their tattoo artist to include the text of Comment [19] on their heel, instep or arch as a foot note.