May a lawyer have a sexual relationship with a current client during the representation?

Plain-English summary

The committee was asked whether a lawyer who engages in a sexual relationship with a client, or the client's representative, during the attorney-client relationship acts unethically. It concluded that such conduct is unethical, except where the client is a spouse. It noted that the Rules do not specifically prohibit a sexual relationship or require withdrawal once one develops, but that the general rules apply, and the central concern is that an intimate relationship may compromise the lawyer's exercise of independent professional judgment in giving candid advice.

The committee worked through several rules. Under Rule 1.1 (competence), it reasoned that while an intimate relationship may not automatically impede competent, zealous representation, there is a danger of indirect harm, for example if the relationship is disclosed during a contested custody case or learned of by a spouse or ex-spouse, compromising the client's settlement position. Under Rule 2.1 (independent professional judgment), it concluded that making decisions based in part on personal involvement violates the Rules and is grounds for discipline, particularly where the lawyer takes action or gives advice not in the client's best interest to preserve the relationship.

On conflicts, the committee applied Rule 1.7(b)(2), reasoning that becoming sexually involved without first warning the client of the potential adverse effects, or without obtaining consent, directly violates the rule, and that where a reasonable lawyer would conclude the lawyer's interest would inevitably affect the representation, client consent cannot waive the conflict. Under Rule 1.8(b), it concluded that a lawyer who uses confidential client information to pursue a sexual relationship violates the rule, especially when acting on vulnerabilities the client disclosed, noting clients in domestic, custody, criminal, and pro bono cases are especially vulnerable. The Oklahoma Bar Board of Governors later withdrew the opinion and asked the committee to restudy it.

Currency note

The Oklahoma Bar Association withdrew this opinion on March 17, 1995 and asked the committee to restudy it; it is published here for research only and is not current guidance. It was issued in 1994 under the Oklahoma Rules of Professional Conduct (effective July 1, 1988), before the later Ethics 2000-based amendments, which added an express rule on lawyer-client sexual relationships (Model Rule 1.8(j) and the Oklahoma equivalent). 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: Did Oklahoma allow a lawyer to date a current client?

A: Under this (now withdrawn) opinion, no. The committee concluded a sexual relationship with a current client during the representation is unethical, except with a spouse.

Q: Could the client just consent?

A: Not always. The committee concluded that where a reasonable lawyer would conclude the lawyer's interest would inevitably affect the representation, client consent cannot waive the conflict.

Q: Is this opinion still in effect?

A: No. The Oklahoma Bar withdrew it on March 17, 1995 and asked the committee to restudy the question.

Background and rules framework

The opinion interpreted Oklahoma RPC 1.1 (competence), 2.1 (independent professional judgment), 1.7(b) (conflicts materially limiting representation), and 1.8(b) (use of client information), which correspond to Model Rules 1.1, 2.1, 1.7, and 1.8. It predated the later Model Rule 1.8(j) addressing lawyer-client sexual relationships directly.

Citations and references

Rules of Professional Conduct:

• Oklahoma RPC 1.1 / Model Rule 1.1: a lawyer shall provide competent representation.
• Oklahoma RPC 2.1 / Model Rule 2.1: a lawyer shall exercise independent professional judgment.
• Oklahoma RPC 1.7(b) / Model Rule 1.7: no representation materially limited by the lawyer's own interest absent the rule's conditions.
• Oklahoma RPC 1.8(b) / Model Rule 1.8: a lawyer shall not use client information to the client's disadvantage absent consent.

See also

• Okla. Bar Ethics Op. 305: Lawyer-officials representing clients before their own municipality
• Okla. Bar Ethics Op. 294: Imputed conflicts within a public defender's office
• Okla. Bar Ethics Op. 280: A former associate's imputed conflict and the lawyer-witness exception

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-308/

Original opinion text

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

Adopted December 9, 1994; Withdrawn: March 17, 1995

[The Board withdrew the following Legal Ethics Opinion No. 308 and requested the OBA Legal Ethics and Unauthorized Practice Committee to restudy the opinion.]

INQUIRY

May a lawyer engage in a sexual relationship with a client, or a client’s representative, during the time when the lawyer is engaged in an ongoing attorney/client relationship?

OPINION

The Oklahoma Bar Association Legal Ethics Committee was asked to determine whether a lawyer, who engages in a sexual relationship with his client, or client’s representative, during his professional attorney/client employment, is unethical. We find that such conduct is unethical, except in the situation involving a spouse.

The Rules of Professional Conduct do not specifically prohibit a sexual relationship between an attorney and client, or require withdrawal from representation once a lawyer becomes sexually involved with a client. However, the general rules pertaining to the attorney/client relationship apply to the specific circumstances in determining whether the lawyer has acted unethically by becoming sexually involved or by not withdrawing from representation once a sexual relationship with a client develops. The general fear is that an intimate relationship with a client may compromise the attorney’s exercise of independent professional judgment in the rendering of candid advice during the representation.

Providing Competent Representation:

Rule 1.1 in part, states: “A lawyer shall provide competent representation to a client….” While an intimate relationship with a client may not automatically impede the ability of an attorney to provide competent, zealous representation, the danger of indirect harm or prejudice to the client’s case exists. For example, if the relationship is disclosed in the courtroom during a contested child custody case, a client may be prejudiced. Similarly, if a spouse or ex-spouse of the client learns of the relationship, the client’s settlement position may be compromised. In such circumstances, the attorney’s conduct may play a significant factor in denying the client the full benefit of the assistance and advice normally available in traditional attorney/client relationships.

Furthermore, involvement in such a sexual relationship may prevent either party from fully exercising their independent judgment concerning the case. Since the attorney relies on the client to define the objectives of his representation, this may affect the attorney’s ability to competently represent the client.

Exercising Independent Professional Judgment:

Rule 2.1 provides: “In representing a client, a lawyer shall exercise independent professional judgment….” If an attorney makes decisions, in part, based upon a personal involvement with a client, it is violative of the Rules of Professional Conduct and grounds for discipline. This is particularly true in situations where the attorney, in attempting to preserve a personal relationship, takes action or renders advice which is not in the client’s best interest.

Avoiding Conflict of Interest:

Rule 1.7(b)(2) declares:

“A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interest, unless:

(a) The lawyer reasonably believes the representation will not be adversely affected; and

(b) The client consents after consultation ….

Becoming engaged in a sexual relationship without first warning and advising the client of the potential adverse effects of such relationship or without obtaining the client’s consent is a direct violation of this rule. Additionally, where a reasonable lawyer would conclude that the lawyer’s interest would inevitably affect the representation, the client’s consent cannot operate as a waiver of the lawyer’s conflicting interest.

Additionally, Rule 1.8(b) states: “A lawyer shall not use information relating to representation of a client to the disadvantage of the client unless the client consents after consultation, …” Accordingly, a lawyer who utilizes confidential client information to pursue a sexual relationship violates this rule; particularly in circumstances where the attorney acts upon vulnerabilities disclosed by the client, in an attempt to manipulate the client into a sexual relationship. The clients involved in domestic, child custody, criminal and pro bono cases are especially vulnerable to the use of this information.