Ezel / Ethics Opinions / OSB
OSB August 2005

Can a lawyer have a sexual relationship with a client during the representation, and can a lawyer represent someone with whom the lawyer already had a sexual relationship?

Short answer: A lawyer may not begin sexual relations with a current client during the representation. A lawyer may continue a sexual relationship that existed before the representation, but only if the resulting personal-interest conflict under Oregon RPC 1.7 is either absent or properly waived.

Apply this to your situation

This page answers the general question as of 2005. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2005
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

A client hires a lawyer to handle a matter. The opinion addresses two questions: whether the lawyer may begin sexual relations with the client during the representation, and whether the lawyer may represent the client where a consensual sexual relationship existed before the representation began. It answers the first no, and the second no, qualified.

The opinion applies Oregon RPC 1.8(j), which prohibits a lawyer from having sexual relations with a current client unless a consensual sexual relationship existed between them before the client-lawyer relationship began (and separately addresses sexual relations with a representative of a client where it would likely prejudice the client). On that basis, the opinion concludes a lawyer is prohibited from beginning sexual relations with a client where no preexisting consensual relationship exists.

For a preexisting relationship that does not violate Oregon RPC 1.8(j), the opinion holds that continuing it during the representation requires analysis under Oregon RPC 1.7. Depending on the facts, an ongoing sexual relationship could create a significant risk that the representation will be materially limited by the lawyer's personal interest under Oregon RPC 1.7(a)(2). Such a conflict may be waived only if the requirements of Oregon RPC 1.7(b) are met, including the lawyer's reasonable belief in competent and diligent representation and the client's informed consent confirmed in writing. The opinion adds that a client who is or should be known to be incapable of giving meaningful consent cannot give informed consent, citing In re Carey, In re Adams, and In re Robeson.

In practice

The opinion holds that the bright-line bar in Oregon RPC 1.8(j) prohibits starting a sexual relationship with a current client, while a preexisting relationship is governed by the general conflict rule: under Oregon RPC 1.7(a)(2), an ongoing sexual relationship can materially limit the representation through the lawyer's personal interest, curable only by a valid Oregon RPC 1.7(b) waiver. Per the opinion, the analysis turns on whether a disqualifying personal-interest conflict exists and, if so, whether informed consent confirmed in writing can be and is obtained. Verify the current text of Oregon RPC 1.8 and 1.7 before relying on any specific point.

Common questions

Q: Can a lawyer start a romantic or sexual relationship with a current client?

A: No. The opinion concludes Oregon RPC 1.8(j) prohibits a lawyer from having sexual relations with a current client unless a consensual sexual relationship existed before the client-lawyer relationship commenced.

Q: What if the lawyer and client were already in a relationship before the representation?

A: The relationship does not violate Oregon RPC 1.8(j), but the opinion holds the lawyer must analyze it under Oregon RPC 1.7; continuing it may create a material-limitation conflict that is permissible only if validly waived.

Q: Can the conflict always be waived?

A: No. The opinion states that a client who is or should be known to be incapable of giving meaningful consent cannot give informed consent under Oregon RPC 1.7(b), so the conflict cannot be waived in that situation.

Background and rules framework

The opinion interprets Oregon RPC 1.8(j) (sexual relations with a current client), corresponding to Model Rule 1.8(j), together with Oregon RPC 1.7 (current-client conflicts), corresponding to Model Rule 1.7, and the definitions of "informed consent" and "confirmed in writing" in Oregon RPC 1.0(b) and (g). It replaces OSB Formal Ethics Op. No. 2005-99.

Citations and references

Rules of Professional Conduct:

  • Oregon RPC 1.8(j) / Model Rule 1.8(j) (sexual relations with a current client)
  • Oregon RPC 1.7 / Model Rule 1.7 (current-client conflicts; personal-interest limitation and waiver)

Cases:

  • In re Carey, 307 Or 315, 767 P2d 438 (1989)
  • In re Adams, 293 Or 727, 652 P2d 787 (1982)
  • In re Robeson, 293 Or 610, 652 P2d 336 (1982)

Other opinions cited:

  • OSB Formal Ethics Op. No. 2005-99 (replaced by this opinion)

See also

Source

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