Is it unethical for a lawyer to have a sexual relationship with a client while representing that client?

Plain-English summary

The Committee was asked whether it violates the Code of Professional Responsibility for an attorney to engage in a sexual relationship with a client during the representation. Rather than decide the specific facts presented, the Committee answered in general terms. It concluded that such a relationship is improper under circumstances that include, but are not limited to: where the relationship is initiated by the attorney in a way that may have deprived the client of free choice; where the attorney exchanges legal services for sexual favors; where the relationship adversely affects the lawyer's ability to protect the client's interests or is otherwise prejudicial to the client's case; where the client is emotionally fragile and the relationship may affect the client's emotional stability; and where the sexual conduct is illegal.

The opinion identified types of representation in which a sexual relationship is particularly inconsistent with the professional relationship, including matters involving the loss, potential loss, or incarceration of significant others, such as wrongful death, divorce and separation, child custody or adoption disputes, and criminal defense of the client's family member. It illustrated the principles with disciplinary cases and sister-bar opinions: People v. Gibbons (a lawyer who made a sexual relationship a condition of representation violated the personal-interest conflict rule and the rule against prejudicing a client); an Oregon opinion on a divorce client; a Maryland opinion requiring withdrawal where intimacy could impair the lawyer's protection of the client; and decisions treating sexual misconduct toward a client as illegal conduct involving moral turpitude.

The opinion mapped these to specific disciplinary rules: DR 5-101(A) (declining or continuing employment affected by the lawyer's own interests without consent), DR 7-101(A)(3) (intentionally prejudicing or damaging the client), and DR 1-102(A)(3) (illegal conduct involving moral turpitude). It closed by stating that the opinion is not intended to prohibit representing a client with whom the attorney has had a mutually consensual, ongoing sexual relationship that predates the representation.

Currency note

This opinion was clarified by Alaska Ethics Opinion 92-6; consult that opinion as well. This opinion was issued in 1988, before the Alaska Bar Association's adoption of the 2009 revisions to the Alaska Rules of Professional Conduct (and before Alaska adopted the Rules of Professional Conduct at all; it applies the former Code of Professional Responsibility, which had no rule specifically on sexual relations with clients). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Does this opinion ban all sexual relationships between a lawyer and a current client?

A: No. The opinion concluded such a relationship is improper in specified circumstances (coercion, trading services for sex, harm to the case, exploiting a fragile client, or illegality), rather than imposing a flat ban.

Q: Is it improper to trade legal services for a sexual relationship?

A: Yes. The opinion concluded an arrangement under which a client provides sexual favors in exchange for representation would violate DR 1-102(A)(3) (illegal conduct involving moral turpitude).

Q: What about a relationship that started before the representation?

A: The opinion stated it was not intended to prohibit representing a client with whom the lawyer had a mutually consensual, ongoing sexual relationship before the representation began.

Q: Are some kinds of cases especially problematic?

A: Yes. The opinion identified matters such as divorce and separation, child custody or adoption, wrongful death, and criminal defense of a family member as situations where a sexual relationship is particularly inconsistent with the representation.

Background and rules framework

The opinion applied the former Alaska Code of Professional Responsibility, which contained no rule specifically addressing sexual relations with clients (the subject is now treated by Model Rule 1.8(j)). It analyzed the conduct through DR 5-101(A), the personal-interest conflict rule analogous to Model Rule 1.7, DR 7-101(A)(3) on prejudicing a client, and DR 1-102(A)(3) on illegal conduct involving moral turpitude (analogous to Model Rule 8.4).

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 5-101(A) (employment affected by the lawyer's own interests) (cf. Model Rule 1.7)
• DR 7-101(A)(3) (intentionally prejudicing or damaging the client)
• DR 1-102(A)(3) (illegal conduct involving moral turpitude) (cf. Model Rule 8.4; see also Model Rule 1.8(j))

Cases:

• People v. Gibbons, 685 P.2d 168 (Colo. 1984), sexual relationship as a condition of representation
• In re Littleton, 719 S.W.2d 772 (Mo. 1986), sexual advances to a client as illegal conduct
• In re Adams, 428 N.E.2d 786 (Ind. 1981), sexual misconduct toward a client

Other opinions cited:

• Oregon State Bar Opinion 429 (1979); Maryland Ethics Opinion 84-9 (1983)

See also

• Alaska Ethics Op. 92-6: Lawyer-Client Sexual Relations
• ABA Formal Op. 92-364: Sexual Relations With Clients

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/88-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ALASKA BAR ASSOCIATION
Ethics Opinion 88-1

Re:

Potential Impropriety of Sexual Relationship with a client during the
time the attorney represents a client.

The Committee has been asked whether it is in violation of the Code of
Professional Responsibility for an attorney to engage in a sexual relationship
with a client during the time the attorney is representing that client. While the
opinion request submitted to the Committee provided specific facts regarding
the professional representation of an attorney, during which a sexual
relationship occurred, it was felt by the Committee that more effective guidance
could be given to the Bar Association by dealing with the question in a general
context.
It is the opinion of the Committee that a sexual relationship between a
client and an attorney during the time the attorney is representing the client is
improper under circumstances that would include, but not be limited to, the
following:
1.

The relationship is initiated by the attorney under circumstances
which may have deprived the client of the ability to exercise free
choice;

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2.

The attorney exchanges legal services for sexual favors from a client;

3.

The sexual relationship has an adverse affect on the lawyer's ability
to protect his client's interest, or is otherwise prejudicial or damaging
to the client's case; or

4.

Where the client is in an emotionally fragile condition, and the sexual
relationship may have an adverse affect on the client's emotional
stability;

5.

Where the sexual conduct is illegal.

There are some circumstances and types of representation under which
that sexual relationship is inconsistent with the professional relationship.
Sexual relationships are potentially harmful to the client in a situation
involving the loss or potential loss or incarceration of other persons of
significance to the client. Examples of this principle may include, but are not
limited to, situations involving wrongful death, divorce and separation, child
custody or adoption disputes, and criminal defense representation of the
client's spouse or other family member.
A sexual relationship with a client that is initiated by the attorney under
circumstances reflecting that the client may have been deprived of a free choice
with regard to the relationship is unethical. As an example, in the case of
People v. Gibbons, 685 P.2d 168 (Co. 1984), an attorney undertook
representation of seven co-defendants charged with burglary. The lawyer, who
was sixty-six years of age, initiated a sexual relationship with a twenty-three
year old female defendant as a condition for his representation of her and her
husband. Following the conclusion of the criminal case, his clients filed a
complaint alleging blackmail because the sexual relationship was made a
condition of representation.
The lawyer conceded that the relationship violated DR 5-101(A), which
prohibits a lawyer from accepting employment if the exercise of his professional
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judgment on behalf of the client will be, or reasonably may be affected by his
own personal interests, without the client's consent, and DR 7-101(A)(3), which
prohibits a lawyer from intentionally prejudicing or damaging his client during
the course of the professional relationship. In disbarring the attorney, based
upon the sexual relationship and other matters relating to the attorney's
responses to the grievance proceeding, the court noted that the client was in a
stressful situation and she was placed "in a position in which she was unduly
dependent on the respondent and in which she may not have been able to
exercise free choice." Id. at 175.
An arrangement between an attorney and client under which the client
would provide sexual favors in exchange for legal representation, would violate
DR 1-102(A)(3), which prohibitsan attorney from engaging in illegal conduct
and involving moral turpitude.
In some situations, a sexual relationship with a client, during the period of
time the attorney is representing the client, may adversely affect the client's
case or otherwise prejudice or damage the client's position. These facts were
presented to the Oregon State Bar when asked for an opinion with regard to an
attorney who was retained by an unemployed woman to represent her in a
divorce proceeding. The opinion stressed that when reviewing the propriety of
an attorney's sexual relationship with a client, the particular facts are
extremely important in each case. It was noted that the lawyer's conduct could
significantly aggravate the other spouse in a domestic action, possibly making
reasonable settlement nearly impossible. Moreover, in the event of a trial, it
was felt the potential for embarrassing disclosure of the lawyer's affair could
cause the attorney to curb effective and aggressive representation. In that type
of situation, the attorney's conduct would be improper under DR 5-101.
Oregon State Bar Ethics Opinion 429 (May, 1979).
A similar opinion was expressed in Maryland Ethics Opinion 84-9
(September 7, 1983), which advised that a lawyer must withdraw from
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employment when he is sexually involved with a client who is seeking advice
regarding the sale of propertyowned by the client and her husband, the
transfer of property from the husband to the wife, and a possible divorce. In
those circumstances, an intimate personal relationship between the lawyer and
the client may have had an adverse affect on the lawyer's ability to protect his
client's interest.
Finally, if the sexual relationship with the client, or sexual conduct toward
the client, is illegal, the attorney is violating DR 1-102(A)(3), which prohibits a
lawyer from engaging in illegal conduct involving moral turpitude. In Re
Littleton, 719 S.2d 772, 776 (Mo. banc 1986) dealt with an attorney who had
been retained to represent a female client on a driving while under the
influence charge. The attorney made sexual advances to the client in the jail
library and later in his car. The court noted that DR 1-102(A)(3) does not
require a conviction of a crime, but only illegal conduct. The court further
noted moral turpitude includes everything contrary to justice, honesty,
modesty and good morals. In holding that the attorney had violated his
professional obligations, the court said:
Respondent and [client] entered into a professional relationship.
[Client] had a right to expect that Respondent would conduct
himself in that relationship in a manner consistent with the
honorable position of the legal profession - a tradition founded on
service, integrity, vigorous commitment to the client's best
interest, and that leads us to the rule of law. Instead of
remaining true to that tradition, however, Respondent chose to
exploit it, seeking to turn the professional relationship into a
personal one.
While the court stressed the exploitation, the non consentual nature of the
conduct would be an important factor. Similarly, In the Matter of Adams, 428
N.E. 2d 786 (Indiana 1981), an attorney who grabbed his female client, kissing
her and raising her blouse, was found to be guilty of illegal conduct involving
moral turpitude.

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This opinion is not intended to prohibit representation of a client in a case
where the attorney and client have been engaged in a mutually consensual and
on-going sexual relationship prior to the commencement of the representation.
Adopted by the Alaska Bar Association Ethics Committee on November 3,
1987.
APPROVED BY THE BOARD OF GOVERNORS: January 9, 1988

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