Ethics

Sexual Relations with Clients

By Thomas P. McGarry
and Thomas P. Sukowicz
Hinshaw & Culbertson

Almost twenty years ago, sexual relations between attorneys and their clients became conduct that was increasingly addressed in disciplinary proceedings and in the rules of professional conduct of many states. Since that time, some states have adopted disciplinary rules prohibiting sexual relations with clients based on ABA Model Rule 1.8(j), which provides:

“A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

Some of these rules specifically include a representative of a client as a person with whom sexual relations are forbidden.

Other states prohibit sexual relations only under certain circumstances, such as when the sexual conduct exploits the attorney-client relationship, when sexual relations are demanded or required as a condition of professional representation, when coercion, intimidation, or undue influence is used in entering into the sexual relations, or when the sexual relations cause the lawyer to perform legal services incompetently.

At least one state completely prohibits sexual relations between lawyers and their divorce clients, but only prohibits sex with other clients when it is required or demanded incident to or as a condition of the representation, or when the attorney employs coercion, intimidation, or undue influence. At least one state also prohibits sexual relations with the spouse of a client.

Illinois currently does not have a specific rule prohibiting sexual relations between a lawyer and his or her client, but Illinois attorneys have been disciplined for engaging in sexual relations with clients under various circumstances. In such cases, the ARDC typically looks at the sexual conduct to determine if it violates rules related to conflicts of interest, confidentiality, dishonesty, or conduct prejudicial to the administration of justice.

One rule commonly implicated in sexual relations with a client is Rule 1.7(b), which prohibits the representation of a client when that representation may be materially limited by the lawyer’s own interests. The material limitation on the representation of the client is often illustrated with reference to divorce cases. As one court put it, “when an attorney engages in sexual relations with a divorce client, particularly where issues of child custody and division of marital assets are disputed, that attorney’s interest in maintaining the sexual relationship creates an inherent conflict with the proper representation of the client.” In re Pellizzari, 726 A.2d 451 (R.I., 1999).

In In re Martoccio, M.R. 15417 (1999), a lawyer began a consensual sexual affair with a client while representing her in her divorce. Custody, visitation, removal of the minor daughter to Wisconsin, support, maintenance, and property division were all issues in the case. Initially, the divorce was amicable, but when the husband learned of the affair, he became hostile and more adamant about fighting for custody of the child. The settlement negotiations were disrupted and the resolution of the case delayed, even though the lawyer voluntarily withdrew after being served with a motion to disqualify.

The ARDC charged the lawyer with violating Rule 1.7(b) and other rules, including 1.16(a)(2), which requires a lawyer to withdraw from employment when his continued employment will result in a violation of the rules. Although the lawyer did withdraw, he did not do so until he was confronted with a motion to disqualify. He was also charged with violating Rule 3.7(a) for continuing the representation when he should have known that he may be called as a witness other than on behalf of his client.

Under some circumstances, the ARDC also charges lawyers who engage in sexual relations with clients with overreaching. The Supreme Court has defined overreaching for purposes of attorney discipline as taking undue advantage of the position of influence he holds vis-a-vis a client. In re Stillo, 68 Ill.2d 49 (1977).

In In re Horne, M.R.12936 (1997), the lawyer was found to have engaged in overreaching with a client who had retained him to collect child support from the putative father of her child. Although the lawyer learned that the client had a history of emotional problems, he entered into sexual relations with her and fathered a child with her.

Sexual relations with a client’s spouse can also get a lawyer into trouble. In In re Reilly, 99 SH 70, the lawyer began a sexual relationship with the former husband of her divorce client before the attorney-client relationship with the ex-wife had concluded. The Board found that the lawyer had breached her fiduciary duty to her client and violated Rule 1.7(b) even though she had not misused any information she obtained from the client and her representation of the client was not deficient.

The Illinois Supreme court is currently considering the recommendation of its Rules Committee that it adopt a rule like ABA Model Rule 1.8(j), cited above, and may adopt such a rule some time in 2008.