By Mitchell L. Lathrop
“But I love her,” cried the hapless attorney before the disciplinary panel, “and she expressly agreed that I could represent her in her divorce. Besides, we’ve been going together for over a year now, and we’ve never had sexual intercourse.” Regrettably, for the attorney, love cannot serve to waive conflicts of interest or the rules!
The relationship, as outlined above, raises several issues. While the attorney may have a legally protected privacy interest under the California constitution in pursuing an intimate relationship,[1] he did not have a reasonable expectation of privacy to pursue an intimate relationship with a client.[2] Although the attorney and his client may not have had sexual intercourse, “the touching of an intimate part of another person [by the attorney] for the purpose of sexual arousal, gratification, or abuse” constitutes a violation of both Rule of Professional Conduct 1.8.10(b) and Business & Professions Code § 6106.9(d). Then there’s the question of when did the relationship begin. Rule 1.8.10(a) and B&P Code § 6106.9(b) prohibits a lawyer from sexual relations with a client unless a consensual sexual relationship existed between them before the lawyer-client relationship commenced. There are no California appellate authorities directly on point; however, a number of other states have dealt with the issue.[3]
Does the lawyer have an impermissible conflict of interest? Rule 1.7(b), as applicable to the scenario above, provides, “A lawyer shall not, without informed written consent . . . represent a client if there is a significant risk the lawyer’s representation of the client will be materially limited by the lawyer’s . . . own interests.” While the interests of the lawyer and the client may be aligned while they’re together, what happens if they break up? The critical question is the likelihood that a difference in interests will eventuate and, if it does, whether it will materially interfere with the lawyer’s independent professional judgment.
The lawyer/lover relationship becomes even more problematic in those situations where the lawyer represents the client/lover as one of a group to whose members the lawyer owes a fiduciary duty. For example, the lawyer represents the lover/client as the representative of an estate where there are multiple siblings with equal claims to the estate assets. Rule 1.1(a) provides that “[a] lawyer shall not intentionally, recklessly, with gross negligence, or repeatedly fail to perform legal services with competence.” Competence in such circumstances requires that the lawyer explain to each of the beneficiaries his or her relationship with the client/lover and obtain specific authorization from each of the other beneficiaries to continue the joint representation. Full disclosure and consent are essential, if future problems are to be avoided; however, that’s still no guarantee that difficulties won’t arise as the matter proceeds.
Even the appearance of a romantic relationship between the lawyer and the client can create problems. For example, in the recent unpublished opinion in Lucas v. Law Offices of Nathan Mubasher,[4] the lawyer was accused of fraud by the client because the lawyer allegedly led the client to believe they had a romantic relationship. While the client “sent him a torrent of romantic emails “asking him to have her children”[5] and professing love, the lawyer objected, and when the client refused to cease, the lawyer withdrew as counsel. Thus rejected, the client sued the lawyer. The jury found in favor of the lawyer and the Court of Appeal affirmed.
The bottom line is this: an intimate relationship between a lawyer and his or her client irreparably compromises the attorney-client relationship, thereby potentially compromising the result — either for or against counsel and/or the client — by the court or a jury. The legal arena is often fraught with emotions for a client. The role of the lawyer is not only to represent the client’s interests but also to competently lead the client through the legal process.
[1]Cal. Const., art I, § 1.
[2]See Barbee v. Household Automotive Finance Corp. (2003) 113 Cal. App. 4th 525, 531.
[3]See Matter of Smallman, 220 N.Y.S.3d 853 (2024); Matter of Scudieri, 174 A.D.3d 168, 101 N.Y.S.3d 333 (2019); N.C. State Bar v. Merritt, 285 N.C. App. 534, 877 S.E.2d 892 (2022); People v. Hayes, 2024 IL App (5th) 210368 (2024); Iowa Supreme Court Atty. Disciplinary Bd. v. Johnson, 884 N.W.2d 772 (Iowa 2016); Lawyer Disciplinary Bd. v. Hussell, 234 W. Va. 544, 767 S.E.2d 11 (2014); Office of Lawyer Regulation v. Carson (In re Disciplinary Proceedings Against Carson), 2015 WI 26, 361 Wis. 2d 323, 860 N.W.2d 483 (2015); Office of Disciplinary Counsel v. Altman, 658 Pa. 319, 228 A.3d 508 (2020); In re Savage, 418 S.C. 368, 793 S.E.2d 298 (2016); In re Tsoutsouris, 748 N.E.2d 856 (Ind. 2001); In re Kennedy, 946 N.W.2d 568 (Minn. 2020).
[4]2024 Cal. App. Unpub. LEXIS 1458, 2024 WL 973274 (Cal. App., March 7, 2024).
[5]Id. at *2.
Thank God the State Bar finally changed the “old rule”, which basically allowed attorneys to have sex with their clients, so long as it was consensual!! Amazingly that was the rule for decades, until 2018!!