Model Rule 1.8(j) of the American Bar Associations suggested ethics rules for attorneys states as follows:
(j) A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.
Not all states that broadly follow the Model Rules in their ethics codes have adopted this rule. Maryland and Louisiana both rejected this rule while adopting most or all of the rest of Model Rule 1.8, which addresses a number of different ethical conflict concerns including representing co-defendants or co-plaintiffs, not naming oneself as a client’s will beneficiary under most conditions, ethical issues involving media/publicity rights, etc.
When I first read this Model Rule as a young attorney, my reaction was immediate and swift: OF COURSE attorneys should not be sexually involved with their clients whatsoever. Had I been on the ABA committee as a young attorney, I probably would have pushed for a more severe language. The act of getting intimately involved with a client just seemed like such unbelievable bad news that I would have wanted any attorney “dumb” enough to violate the rule to spend time in the ethical penalty box, under the theory that stupidity should be expensive on general principles.
Age and experience have affirmed my revulsion at the foolishness of getting sexually involved with a client, and in my office it would be per se a firing offense. I am now more inclined to think, even convinced, however, to think that that Model Rule 1.8(j) as written is unwise for two practical reasons.
1) Inclusio unius = exclusio alterius – the inclusion of one example constitutes the exclusion of others. By barring “sexual relations”, the rule would appear to admit personal relationships that do not cross the line of “sexual relations.” The last latter term was not explicitly defined in the Model Rules and, infamously, has been the source of late-night comedy show humor since the President Clinton scandal of 1997-1999 (I refuse to refer to that scandal by the surname of the young Executive Branch employee.) By prohibiting “sexual relations”, the rule could by implication allow relationships between lawyer and client that are dysfunctional, ethically compromised and conflict-ridden, but by narrow construction fall outside of “sexual relations.”
2) Some “sexual relations” or “sexual relationships” simply should not fall into attorney disciplinary under principles of common sense, fundamental fairness or decency. Perhaps a concrete example may help.
Adrienne Attorney meets Calvert Client through a mutual friend attorney Nora Networker, who knows everybody. Calvert got caught allegedly doing 62 in a 50 mph work zone on the Baltimore Beltway near Liberty Road, and asks Adrienne to represent him on the ticket as a favor. Adrienne normally charges $400.00 for this but waives the fee as a courtesy to Nora. Calvert and Adrienne, turns out, have lots of friends in common and go out for lunch. They really hit it off; they turn out to belong to the same religious community and have family members in the same social organizations. The court date is 2 months away.
Adrienne and Calvert attend a party thrown by Nora on their fourth date, three weeks before the speeding ticket trial date. After a night of flirting and mildly wine-soaked humor, they crash at Adrienne’s place. As sometimes happens, conduct ensues in private that would not meet the full approval of the spiritual leader of their community. Finally on the trial date, Adrienne represents Calvert in court; the law enforcement officer no-shows and the charge is dismissed.
A few weeks after the court date, Adrienne has second thoughts about whether the personal relationship is wise. She’s decided she’s not comfortable being at variance with the teachings of her religious community, and tells Calvert that she’s just not comfortable with the relationship as it currently stands. Calvert responds poorly and leaves in a huff. He tells Nora about the details of the relationship the following week, stating that it was going well and then went to hell.
a) Should Nora now be under a duty to “squeal” to Bar Counsel? Is this conduct that raises a substantial question as to Adrienne’s fitness to practice law in this state?
b) Should Adrienne face public discipline, call her carrier for a disciplinary attorney, face a peer review committe, face the Commission, face a closed-door proceeding in Circuit Court, face seven judges in red robes in Annapolis and possibly lose her attorney permit when the ethical impact of the incipient sexual relationship on the client’s legal position was probably zero?
c) Should the taxpayers of Maryland pay Attorney Grievance Commission investigators, Assistant Bar Counsel, etc., salary and benefits to pursue the facts of Calvert and Adrienne?
As stated, I find the idea of initiating a sexual relationship with a current client to be a serious judgment lapse justifying a firing, even when it’s just a speeding ticket. But it’s probably wise that my prejudices and quirks don’t inform the attorney ethics rules of this state. Model Rule 1.8(j) was a worthy start to the discussion, but in the absence of any prejudice to any client’s rights through actual ethical conflict, it’s probably an overbroad rule in practice.