Is it unethical for a lawyer to have a sexual relationship with a client while representing that client?

Plain-English summary

The Committee was asked whether it violates the Code of Professional Responsibility for an attorney to engage in a sexual relationship with a client during the representation. Rather than decide the specific facts presented, the Committee answered in general terms. It concluded that such a relationship is improper under circumstances that include, but are not limited to: where the relationship is initiated by the attorney in a way that may have deprived the client of free choice; where the attorney exchanges legal services for sexual favors; where the relationship adversely affects the lawyer's ability to protect the client's interests or is otherwise prejudicial to the client's case; where the client is emotionally fragile and the relationship may affect the client's emotional stability; and where the sexual conduct is illegal.

The opinion identified types of representation in which a sexual relationship is particularly inconsistent with the professional relationship, including matters involving the loss, potential loss, or incarceration of significant others, such as wrongful death, divorce and separation, child custody or adoption disputes, and criminal defense of the client's family member. It illustrated the principles with disciplinary cases and sister-bar opinions: People v. Gibbons (a lawyer who made a sexual relationship a condition of representation violated the personal-interest conflict rule and the rule against prejudicing a client); an Oregon opinion on a divorce client; a Maryland opinion requiring withdrawal where intimacy could impair the lawyer's protection of the client; and decisions treating sexual misconduct toward a client as illegal conduct involving moral turpitude.

The opinion mapped these to specific disciplinary rules: DR 5-101(A) (declining or continuing employment affected by the lawyer's own interests without consent), DR 7-101(A)(3) (intentionally prejudicing or damaging the client), and DR 1-102(A)(3) (illegal conduct involving moral turpitude). It closed by stating that the opinion is not intended to prohibit representing a client with whom the attorney has had a mutually consensual, ongoing sexual relationship that predates the representation.

Currency note

This opinion was clarified by Alaska Ethics Opinion 92-6; consult that opinion as well. This opinion was issued in 1988, before the Alaska Bar Association's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility, which had no rule specifically on sexual relations with clients). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does this opinion ban all sexual relationships between a lawyer and a current client?

A: No. The opinion concluded such a relationship is improper in specified circumstances (coercion, trading services for sex, harm to the case, exploiting a fragile client, or illegality), rather than imposing a flat ban.

Q: Is it improper to trade legal services for a sexual relationship?

A: Yes. The opinion concluded an arrangement under which a client provides sexual favors in exchange for representation would violate DR 1-102(A)(3) (illegal conduct involving moral turpitude).

Q: What about a relationship that started before the representation?

A: The opinion stated it was not intended to prohibit representing a client with whom the lawyer had a mutually consensual, ongoing sexual relationship before the representation began.

Q: Are some kinds of cases especially problematic?

A: Yes. The opinion identified matters such as divorce and separation, child custody or adoption, wrongful death, and criminal defense of a family member as situations where a sexual relationship is particularly inconsistent with the representation.

Background and rules framework

The opinion applied the former Alaska Code of Professional Responsibility, which contained no rule specifically addressing sexual relations with clients (the subject is now treated by Model Rule 1.8(j)). It analyzed the conduct through DR 5-101(A), the personal-interest conflict rule analogous to Model Rule 1.7, DR 7-101(A)(3) on prejudicing a client, and DR 1-102(A)(3) on illegal conduct involving moral turpitude (analogous to Model Rule 8.4).

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 5-101(A) (employment affected by the lawyer's own interests) (cf. Model Rule 1.7)
• DR 7-101(A)(3) (intentionally prejudicing or damaging the client)
• DR 1-102(A)(3) (illegal conduct involving moral turpitude) (cf. Model Rule 8.4; see also Model Rule 1.8(j))

Cases:

• People v. Gibbons, 685 P.2d 168 (Colo. 1984), sexual relationship as a condition of representation
• In re Littleton, 719 S.W.2d 772 (Mo. 1986), sexual advances to a client as illegal conduct
• In re Adams, 428 N.E.2d 786 (Ind. 1981), sexual misconduct toward a client

Other opinions cited:

• Oregon State Bar Opinion 429 (1979); Maryland Ethics Opinion 84-9 (1983)

See also

• Alaska Ethics Op. 92-6: Lawyer-Client Sexual Relations
• ABA Formal Op. 92-364: Sexual Relations With Clients

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/88-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
Ethics Opinion 88-1

Re:

Potential Impropriety of Sexual Relationship with a client during the time the attorney represents a client.

The Committee has been asked whether it is in violation of the Code of Professional Responsibility for an attorney to engage in a sexual relationship with a client during the time the attorney is representing that client. While the opinion request submitted to the Committee provided specific facts regarding the professional representation of an attorney, during which a sexual relationship occurred, it was felt by the Committee that more effective guidance could be given to the Bar Association by dealing with the question in a general context. It is the opinion of the Committee that a sexual relationship between a client and an attorney during the time the attorney is representing the client is improper under circumstances that would include, but not be limited to, the following: 1.

The relationship is initiated by the attorney under circumstances which may have deprived the client of the ability to exercise free choice;

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2.

The attorney exchanges legal services for sexual favors from a client;

3.

The sexual relationship has an adverse affect on the lawyer's ability to protect his client's interest, or is otherwise prejudicial or damaging to the client's case; or

4.

Where the client is in an emotionally fragile condition, and the sexual relationship may have an adverse affect on the client's emotional stability;

5.

Where the sexual conduct is illegal.

There are some circumstances and types of representation under which that sexual relationship is inconsistent with the professional relationship. Sexual relationships are potentially harmful to the client in a situation involving the loss or potential loss or incarceration of other persons of significance to the client. Examples of this principle may include, but are not limited to, situations involving wrongful death, divorce and separation, child custody or adoption disputes, and criminal defense representation of the client's spouse or other family member. A sexual relationship with a client that is initiated by the attorney under circumstances reflecting that the client may have been deprived of a free choice with regard to the relationship is unethical. As an example, in the case of People v. Gibbons, 685 P.2d 168 (Co. 1984), an attorney undertook representation of seven co-defendants charged with burglary. The lawyer, who was sixty-six years of age, initiated a sexual relationship with a twenty-three year old female defendant as a condition for his representation of her and her husband. Following the conclusion of the criminal case, his clients filed a complaint alleging blackmail because the sexual relationship was made a condition of representation. The lawyer conceded that the relationship violated DR 5-101(A), which prohibits a lawyer from accepting employment if the exercise of his professional 2

judgment on behalf of the client will be, or reasonably may be affected by his own personal interests, without the client's consent, and DR 7-101(A)(3), which prohibits a lawyer from intentionally prejudicing or damaging his client during the course of the professional relationship. In disbarring the attorney, based upon the sexual relationship and other matters relating to the attorney's responses to the grievance proceeding, the court noted that the client was in a stressful situation and she was placed "in a position in which she was unduly dependent on the respondent and in which she may not have been able to exercise free choice." Id. at 175. An arrangement between an attorney and client under which the client would provide sexual favors in exchange for legal representation, would violate DR 1-102(A)(3), which prohibitsan attorney from engaging in illegal conduct and involving moral turpitude. In some situations, a sexual relationship with a client, during the period of time the attorney is representing the client, may adversely affect the client's case or otherwise prejudice or damage the client's position. These facts were presented to the Oregon State Bar when asked for an opinion with regard to an attorney who was retained by an unemployed woman to represent her in a divorce proceeding. The opinion stressed that when reviewing the propriety of an attorney's sexual relationship with a client, the particular facts are extremely important in each case. It was noted that the lawyer's conduct could significantly aggravate the other spouse in a domestic action, possibly making reasonable settlement nearly impossible. Moreover, in the event of a trial, it was felt the potential for embarrassing disclosure of the lawyer's affair could cause the attorney to curb effective and aggressive representation. In that type of situation, the attorney's conduct would be improper under DR 5-101. Oregon State Bar Ethics Opinion 429 (May, 1979). A similar opinion was expressed in Maryland Ethics Opinion 84-9 (September 7, 1983), which advised that a lawyer must withdraw from 3

employment when he is sexually involved with a client who is seeking advice regarding the sale of propertyowned by the client and her husband, the transfer of property from the husband to the wife, and a possible divorce. In those circumstances, an intimate personal relationship between the lawyer and the client may have had an adverse affect on the lawyer's ability to protect his client's interest. Finally, if the sexual relationship with the client, or sexual conduct toward the client, is illegal, the attorney is violating DR 1-102(A)(3), which prohibits a lawyer from engaging in illegal conduct involving moral turpitude. In Re Littleton, 719 S.2d 772, 776 (Mo. banc 1986) dealt with an attorney who had been retained to represent a female client on a driving while under the influence charge. The attorney made sexual advances to the client in the jail library and later in his car. The court noted that DR 1-102(A)(3) does not require a conviction of a crime, but only illegal conduct. The court further noted moral turpitude includes everything contrary to justice, honesty, modesty and good morals. In holding that the attorney had violated his professional obligations, the court said: Respondent and [client] entered into a professional relationship.
[Client] had a right to expect that Respondent would conduct himself in that relationship in a manner consistent with the honorable position of the legal profession - a tradition founded on service, integrity, vigorous commitment to the client's best interest, and that leads us to the rule of law. Instead of remaining true to that tradition, however, Respondent chose to exploit it, seeking to turn the professional relationship into a personal one. While the court stressed the exploitation, the non consentual nature of the conduct would be an important factor. Similarly, In the Matter of Adams, 428 N.E. 2d 786 (Indiana 1981), an attorney who grabbed his female client, kissing her and raising her blouse, was found to be guilty of illegal conduct involving moral turpitude.

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This opinion is not intended to prohibit representation of a client in a case where the attorney and client have been engaged in a mutually consensual and on-going sexual relationship prior to the commencement of the representation. Adopted by the Alaska Bar Association Ethics Committee on November 3, 1987. APPROVED BY THE BOARD OF GOVERNORS: January 9, 1988

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