Virginia Lawyers Weekly VA Lawyers Weekly
A Virginia State Bar committee proposes a “bright-line rule” prohibiting sexual relations between a lawyer and a current client unless the intimate relationship predated the lawyer-client relationship.
Bar prosecutors regularly get complaints about lawyer-client liaisons, the committee chair said. Incidents often arise in divorce cases, reports indicate. At least 43 other states clearly prohibit sex with a client, the panel said. Proposed new rule language warns that a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role.
The suggested changes to Rule 1.8, which addresses conflicts of interest, were put up for comment Dec. 16 by the VSB Standing Committee on Legal Ethics, along with an unrelated proposed new legal ethics opinion and amendments to an existing LEO regarding outsourcing of legal work.
No clear rule in Virginia
Ethics Committee Chair Dennis J. Quinn says Virginia is an outlier on the client-sex issue.
“Virginia is one of a handful of states that has not adopted ABA Model Rule 1.8(j) which prohibits sexual relationships with clients. While we previously issued LEO 1853, which provides guidance on this topic, that LEO was not reviewed or adopted by the Supreme Court and does not have the effect of law,” Quinn said.
But Quinn says it’s a real world issue, and some lawyers contend they didn’t know the standards.
“Bar Counsel regularly receives complaints about lawyers sleeping with their clients, despite the LEO. So, while some might think it’s obvious that a lawyer should not sleep with his client, the Committee concluded that adopting a rule would clarify the issue and make it easier to discipline lawyers who apparently are not aware that having sex with a client is wrong,” Quinn said.
The bar has discouraged sex with clients since at least 1998, when the VSB Disciplinary Board disagreed with a lawyer who claimed his liaison with a client was none of the bar’s business. The lawyer received a public reprimand with terms in what may have been the bar’s first official statement that sex with clients is an ethical violation.
The VSB ethics committee adopted LEO 1853 in 2009, making explicit that intimate relations during the professional relationship are forbidden, but the guidance does not have the force of law.
Bar Counsel Renu Brennan said the bar prosecutor’s office for years has taken the position that lawyer-client sex is unethical, relying on the general prohibition of conflicts of interest in Rule 1.7 of the Rules of Professional Conduct.
She said she welcomed the Ethics Committee proposal to make the standard explicit with an addition to Rule 1.8.
Unequal relationships
The nature of the legal relationship is at the heart of the prohibition, according to the proposed rule comment.
“The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal: thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer’s fiduciary role, in violation of the lawyer’s basic ethical obligation not the use the trust of the client to the client’s disadvantage,” the comment would read.
There is also the danger that a personal relationship can impair the lawyer’s exercise of independent professional judgment and blur the line of an attorney-client privilege, the comment continues.
A separate comment would state that sexual relationships that predate the client-lawyer relationship are not prohibited. “Issues relating to the exploitation of the fiduciary relationship and client dependency are diminished when the sexual relationship existed prior to the commencement of the client-lawyer relationship,” the proposal reads.
The rule comments would state that the prohibition applies to a supervising lawyer when the client is an organization.
Quantum meruit issues
The Ethics Committee also proposes a new LEO 1878 to protect plaintiff clients who switch lawyers in the midst of contingent-fee litigation. The LEO would make it clear that the new lawyer must charge a reasonable fee and adequately explain the fee.
If the client, the former lawyer and the new lawyer cannot agree in advance about how the predecessor’s fee will be calculated, then the successor lawyer should address in a written contingent fee agreement the client’s potential obligation to the discharged lawyer. The agreement also should state that the successor counsel’s fees might need to be adjusted in view of predecessor counsel’s quantum meruit lien, to ensure the new lawyer’s fee is reasonable.
Outsourcing
Finally, the Ethics Committee proposes revisions to LEO 1850 regarding the outsourcing of legal services. The change would simplify and streamline the scenarios and analysis, the committee said. It would also clarify what a lawyer must disclose to a client when outsourcing services.
In the draft amended opinion, the committee concludes a lawyer may ethically outsource services if the lawyer (1) rigorously monitors and reviews the work to ensure competency and avoidance of unauthorized law practice, (2) preserves client confidences, (3) bills appropriately, and (4) obtains the client’s informed advance consent.
All three ethics proposals are accessible on the VSB website. Comments are due at [email protected] by March 20. The VSB extended the time for comment. The deadline had been Feb. 7.
Updated Jan. 7 to note extended comment period.
