By: Alara T. Chilton
As a lawyer, you may question the prudence of representing someone with whom you are romantically involved. Even if the relationship is going well, and you are confident in your competence to handle the representation, you may be concerned about the ethical considerations. Upon conducting some research you discover:
Rule 1.8.10 prohibits sexual relations with a current client but makes an exception for a pre-existing relationship
Rule 1.8.10 prohibits a lawyer from engaging in “sexual relations with a current client who is not the lawyer’s spouse or registered domestic partner. . . .” (Cal. Prof. Rule of Conduct, Rule 1.8(10)(A).)1 An exception occurs where the “consensual sexual relationship existed between them when the lawyer-client relationship commenced.”
You are relieved to find your romantic relationship falls under this exception, as the rule does not apply to consensual pre-existing sexual relationships between a lawyer and her client. You continue your research.
The existence of an attorney-client relationship creates a fiduciary relationship.
“An attorney’s duty to his or her client depend on the existence of an attorney-client relationship. If that relationship does not exist, the fiduciary duty to a client does not arise. [Citation.]” (Fox v. Pollack (1986) 181 Cal. App. 3d 954, 959, 226 Cal. Rptr. 532.) The relationship is usually proved by the existence of a contract, either express or implied. (Ibid.) “[I]t is the intent and conduct of the parties that control the question as to whether an attorney-client relationship has been created.” (Hecht v. Superior Court (1987) 192 Cal. App. 3d 560, 565.)
Thus, even without an express contract for legal services with your romantic partner, an attorney-client relationship may be implied based on your and your partner’s intent and conduct. Once the relationship is created, you become a fiduciary to your partner. You research the significance of this role and learn the following:
A lawyer, as a fiduciary, is required to act for the benefit of her client.
Black’s Law Dictionary defines a fiduciary as “[s]omeone who is required to act for the benefit of another person on all matters within the scope of their relationship; one who owes the duties of good faith, loyalty, due care and disclosure.” “The relationship between an attorney and client is a fiduciary relationship of the very highest character. All dealings between an attorney and his client that are beneficial to the attorney will be closely scrutinized with the utmost strictness for any unfairness.” (Clancy v. State Bar (1969) 71 Cal.2d 140, 146.)
An unpublished Review Department decision (In the Matter of Vargas, (May 6, 2024) (Case No. SBC-22-O-30280) highlights the scrutiny and discipline a lawyer faces when violating fiduciary duties to a client who was previously his girlfriend.
Attorney Vargas met Ms. Diggs in the summer of 2017 and by November, they subleased an apartment together. Diggs paid half the rent until she moved out in April 2018. Before her departure, Vargas agreed to represent Diggs in a landlord-tenant matter by filing a Superior Court complaint against Digg’s landlord, on February 5, 2018. Later, he representing her in an unlawful detainer action.
During the representation of Diggs, Vargas committed various acts of serious misconduct, of which only a few are discussed here. Vargas repeatedly threatened Diggs to withdraw from her representation. Between February 26 and March 25, 2018, he sent her numerous crude texts and emails that requested she find new counsel. By mid-June, their personal relationship and their attorney-client relationship ended. However, Vargas continued to send crude messages with threats and sexually explicit photographs for several months. In July 2018, Vargas sued Diggs in small claims court for unpaid rent on their sublease.
The Review Department found Vargas culpable of violating Business and Professions Code section 6068, subdivision (a), for breaching his fiduciary duty and the common law duty of loyalty. The Review Court stated:
Vargas clearly breached his statutory duty to Diggs, along with his common law duty to her, on multiple occasions by threatening to withdraw and not work on her case as he became upset over the course of their volatile romantic relationship. He continued to breach his duties to Diggs by engaging in a campaign of harassment against her after their romantic relationship ended that involved insults and crude messages, threats, sexually explicit photographs, unfounded accusations, and the small claims action, all of which are appalling and disturbing.
The Review Department also found Vargas capable of numerous other ethical violations and recommended Vargas be suspended from the practice of law for three years, execution of which was stayed, with at least 18 months actual suspension.
After reading In the Matter of Vargas, you are reminded of how often romantic relationships end poorly. You think to yourself, “No reasonable attorney would imagine her romantic relationship deteriorating so badly that it would impede her ability to practice law.” You may decide it is best to not create an attorney-client relationship with your romantic partner to avoid the fiduciary obligations that arise with it. This may be the best way to protect both your relationship and your bar card.
1 The rule defines “sexual relations” as “sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.” (Rules of Prof. Conduct, Rule 1.8(10)(B).)