Sex with Clients or Colleagues
August 20, 2013
There are few actions by an attorney that can be more professionally damaging than sex with clients or colleagues (attorneys or staff). The Ohio Supreme Court has characterized over the years serious ethical/professional issues arising from sexual activities such as:
- Fiduciary responsibilities/power position of the lawyer
- Maintenance of confidentiality
- Exercise of independent professional judgment
- Legal fees
- Competency and fitness to practice
- Professional confidence
- Conflict of interest
The Court’s sanctioning of such conduct has consistently taken place despite the presence of consent or the absence of prejudice to the client.
Rule 1.8(j), governing conduct from February 1, 2007 forward, prohibits a lawyer from soliciting or engaging in sexual activity with a client, “unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.” Comment  notes the strong fiduciary responsibility of lawyer to client, potential emotional involvement and impairment of independent professional judgment, and threats to attorney-client confidences. Comment  (the Court describes such Comments as “guides to interpretation”) nonetheless prohibits an inside or outside lawyer for an organizational client from having a sexual relationship with a constituent who regularly supervises, directs or consults with the lawyer concerning the organization’s legal matters.
Some of the results obtained under 1.8(j) yield strange results. If an attorney has a “one night stand” and the next morning agrees to provide legal services for last night’s sex partner, no violation of the Rule occurs. Of course, other provisions of the Rules might be violated, such as conflicts of interest or conduct adversely reflecting on fitness to practice.
The overriding importance is that the Court has levied sanctions ranging from public reprimand to indefinite suspension where the standards were breached by sexual activity. Even sexual involvements that begin as consensual may morph into cases of sexual harassment, such as unwanted sexual advances or sexual innuendoes, and very severe results to a lawyer’s license or assets may occur. In an excellent article by Areva Martin, Esq., “Office Romances Are Risky Business,” the website of Martin & Martin│llp the negative, dire consequences of such romantic, sexual activity are summarized:
“Given the potential for disaster, lawsuits and psychological scars, office romances just are not worth the risk….If you haven’t thought about all of the possibilities, including possible termination, public humiliation and the possible negative impact on your long term career goals, don’t do it.”