Q: Dear Ethics Lawyer, I have a delicate question. I have always had a good relationship with my in-house contact for a long standing corporate client, but recently it’s taken a turn – a mutual attraction has arisen. I find myself drawn to this person, engaging in extended conversations and complimenting them on their appearance as well as how they are handling matters. Some of our meetings have been over dinner, and some of our conversations have become a bit flirty. Then last night, as we were texting each other, the client representative asked if I would be interested in getting together personally sometime, and sent me a sexually revealing picture. I responded in kind, saying that would be nice and attaching a picture of my own. I am guessing that I may not be able to have an actual sexual relationship with the client representative while the representation continues, but has what I’ve done so far crossed any lines?
A: You are correct that an actual sexual relationship with a client, that does not pre-date the representation, violates the Model Rules of Professional Conduct. Rule 1.8(j), adopted in 39 states, states that “[a] lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” Comment 22 to the Rule states that this prohibition also applies to sexual relations between a lawyer (outside counsel or in-house counsel) and constituents of organizational clients who supervise, direct or regularly consult with that lawyer.
Comments 20 and 21 state the rationale for the Rule, based in the lawyer’s responsibility as a fiduciary. The lawyer may be in a position that exploits an imbalance in the relationship. In addition, emotional involvement may impair the lawyer’s ability to provide unimpaired and independent professional judgment. Communications may occur in circumstances that compromise the protection of attorney-client privilege. The client’s own emotional involvement may undermine their ability to provide adequate informed consent. Furthermore, the circumstances of the lawyer’s personal interests may create a Rule 1.7(a)(2) “material limitation” conflict.
In addition, Rule 1.13 imposes a duty on you to represent the interests of the organization, not the constituent with whom you work and may have a relationship with. This may compound the possibility of a Rule 1.7(a)(2) material limitation conflict, if your ability to provide advice and counsel to the organization client is limited or compromised by your emotions toward or involvement with the constituent.
While you may not have violated the letter of Rule 1.8(j), you should examine whether the relationship you now have with the client representative violates or could violate the Rules in other ways, considering the factors mentioned above. Could emotional involvement and desire cloud your ability to provide independent and competent representation (Rule 1.1) or reduce the ability of you and the client representative to communicate about, and the client representative to make decisions with informed consent (Rules 1.2, 1.4)? Are you adequately protecting attorney-client privilege? Do your emotions and interests materially limit your ability to provide the representation (Rule 1.7(a)(2))? These are all real risks in your situation.
Disciplinary authorities are focusing on these factors in cases not involving actual sexual relations. For example, in 2023, the Minnesota Supreme Court suspended a lawyer who engaged in a series of sexually suggestive communications to a divorce client, escalating to an explicit email chain with invitations to meet in person outside of business hours. The disciplinary proceeding alleged (and the lawyer admitted) that this conduct created a Rule 1.7(a)(2) material limitation conflict, violated Rule 1.1 concerning competence, and was an attempt to violate the Rule on sexual relations punishable as a violation of rule 8.4(a). In re Petition for Disciplinary Action Against William A. Winter, 991 N.W.2d 278 (Minn. 2023) (Mem.). See Susan Humiston, Unprofessional Relationships With Clients, bbc0823 corrected.pdf (mncourts.gov) (Aug.9, 2023).
The safer and better course of action in your matter, for you and especially for your client, is to withdraw from the matter to remove yourself from what has become a non-professional relationship, and eliminate any effect on your client’s matter or the judgment of yourself or your client. Although Rule 1.8(j) issues are not imputed from an individual to that individual’s law firm, Rule 1.8(k); if a Rule 1.7(a)(2) conflict exists, a waiver based on informed consent would need to be obtained from the organizational client (through another authorized representative) for a different lawyer in your firm to pick up the representation. Alternatively, because this is an organizational client, if your in-house contact were to step back in favor for a different representative at the company to supervise or direct the legal work you are handling, that would also mitigate the issue.