In the past, I have often described the Rules of Professional Conduct as the Emily Post Book of Etiquette for lawyers. The rules tell you how to treat clients, adversaries, judges, unrepresented parties and represented parties. The rules guide you to be a polite and efficient litigator and advise you how to begin a new client engagement, and how to end one that has gone awry.
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A number of rules address how to manage conflicts of interest: Rule 1.7 addresses concurrent conflicts or conflicts between current clients; Rule 1.8 addresses specific conflicts that can arise when clients and lawyers engage in business arrangements and other “extra-legal” activities; Rule 1.9 describes when representation of former clients creates a conflict; Rule 1.10 defines conflicts that are imputed to your fellow firm colleagues; Rule 1.11 provides guidance on how to manage conflicts when moving from government to private practice; Rule 1.12 governs conflicts that could arise when judges move from the bench to private practice.
Why are conflicts so important in the regulation of attorneys? Because we owe our clients our undivided loyalty in pursuing their goals. Things can get messy fast when either the interests of former clients, or our own personal or professional interests are competing for that loyalty. Further, our duty to remain free of disqualifying conflicts is inextricably tied to our duty to maintain client confidences, as defined by Rule 1.6. For example, you know you have a concurrent conflict when you have information from Client A, the disclosure of which would be harmful to A, but helpful to your other client, Client B. Thus, your duty to maintain Client A’s confidential communications conflicts with your duty to provide competent representation to Client B. As a result, you may end up having to withdraw from the representation of both clients.
There are many gray areas in analyzing conflicts, but one area is black and white. Rule 1.8(j) states: “A lawyer shall not have sexual relations with a client unless a consensual relationship existed between them when the client-lawyer relationship commenced.” This is a clear prohibition against physical intimacy between lawyer and client, regardless of who initiates it, as long as it doesn’t predate the attorney client relationship. Comments 17-19 to the rule explain the purpose and rationale of the prohibition:
A lawyer is a fiduciary who “occupies the highest position of trust and confidence.” This trust is sacrosanct.
As a fiduciary with superior knowledge and expertise, the attorney and the client have an uneven power dynamic through the attorney’s control over the representation. Thus, a sexual relationship has the potential to involve both unfair exploitation of trust and puts the client at a disadvantage in both the personal and the professional relationship.
Third, the personal relationship “presents a significant danger that” the lawyer’s “exercise of independent professional judgment” will be impaired, creating a personal conflict under Rule 1.7(a)(2).
Fourth, “a blurred line between the professional and personal relationships” may also blur the boundaries of the attorney-client evidentiary privilege since client confidences are protected only in the context of the client-lawyer relationship.
One more notable thing about Rule 1.8(j): the rule is violated whether or not the sexual relationship is consensual, and “regardless of the absence of prejudice to the client.” As with all disciplinary cases, whether a sanction will be imposed, and the severity of the sanction will depend on the circumstances and the facts.
But how broad is the prohibition of Rule 1.8(j)? Cases sanctioning conduct under the rule have ranged from sexual relationships and affairs to texting and sexual advances. Compare Office of Disciplinary Counsel v. Toussant, 138 DB 2022 (Board Report 12/28/2022; S.Ct. Order 2/13/2023) (one year suspension for affair with client and attorney’s detrimental actions in retaliation after relationship ended) and Office of Disciplinary Counsel v. Briskin, (Board Report, 5/16/2019) (public reprimand for sexting client and unwanted sexual propositioning.) These cases raise the question: is sexting included in the prohibition against “sexual relations”?
Recently, as this publication reported here, the board proposed an amendment to the comments to Rule 1.8(j) that seeks to clarify that prohibited sexual relations is not limited to actual physical conduct or intimacy. The proposed language states: “For purposes of this rule, ‘sexual relations’ includes, but is not limited to, sexual communications with a client.” The rationale for this change is that sexting with clients presents the same risks to the attorney-client relationship as physical intimacy. While the two types of conduct differ in intensity, both breach the appropriate and necessary professional boundary between attorney and client. It is important to note that this boundary protects both sides of the relationship: an attorney who has compromised their professional relationship with a client has created a risk that the client may use that compromised position to their own unfair advantage.
There once was a time when lawyers wrote letters to clients, reviewed them in hard copy and then sent them in the mail. Then emails became the standard, reducing the formality of the communication and increasing the speed. Now, cellphones have introduced a type of attorney-client communication that is often carried out on a personal phone, with a lack of formality and at a speed that defies caution. This blends the personal and professional in ways that were not contemplated when the rules were promulgated. The board is correct that this new reality needs to be addressed, there are two concerns. First, the breadth of the term, “sexual communications” may not provide attorneys with adequate notice of what conduct is prohibited. Second, is the amendment of the comment, as opposed to the rule, sufficient to expand the definition of “sexual relations” as the board hopes, or is that subject to challenge? As paragraph 20 to the preambles to the rules states: “Comments do not add obligations to the rules but provide guidance for practicing in compliance with the rules.” Thus, the board may need to amend the rule to achieve the result it desires.
Emily Post would certainly approve of Rule 1.8(j)’s effort to set a sensible boundary between your love life and your work life. Of course, as another Emily, Emily Dickinson, said here “the heart wants what it wants.” My advice is that if you find yourself having personal feelings about a client that you need to acknowledge, refer the client to another lawyer. It’s easier to find clients than it is to find love.
Ellen C. Brotman, of Brotman Law in Philadelphia, represents individuals before licensing boards, providing effective, caring and efficient assistance. She has served as an assistant federal defender in Philadelphia and practiced in small, medium and large firms with a focus on criminal defense, appellate advocacy, professional responsibility and ethics.
Reprinted with permission from the October 11, 2023 issue of The Legal Intelligencer. © 2023 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.