Roses are Red, Rainclouds are Gray, What You Want With Your Client Breaks 1.8(j)

(Alternative Title: Everything You Never Wanted To Know About Sex With Clients But Didn’t Even Think To Ask)

Happy Valentine’s Day, everyone.

Model Rule 1.8(j) (Wisconsin counterpart here) is the one Rule (other than, perhaps, don’t steal from your clients) that non-lawyers seem to know. Not that this has ever been polled, but if I had to guess, it’s the Rule that attorneys other than professional responsibility lawyers can cite most often without looking up. Law students try to stump their professors with increasingly fanciful scenarios. Of course this Rule seems more interesting to most observers than imputed conflicts and multijurisdictional practice.

The Rule broadly forbids attorneys from engaging in sexual relationships with their clients. Both consensual and non-consensual contact are governed by this Rule; of course, non-consensual contact, in addition to exposing the lawyer to criminal liability, will also implicate other rules such as portions of 8.4 that prohibit criminal conduct or harassment on the basis of sex, and, in Wisconsin, incorporate the Attorney’s Oath requiring us to refrain from offensive personality. The focus of this blog entry, for what I hope are obvious reasons, is consensual relationships. (Also outside the scope of this blog entry is adultery—ABA Comment (2) to Rule 8.4 advises that discipline should flow for professional failings rather than purely personal ones.)

Different states that have adopted the Model Rule use slightly different versions—Wisconsin forbids sexual contact with a client (including representatives of organizational clients who the attorney consults with or is directed or supervised by) unless a consensual relationship pre-dated the representation, as does the Model Rule (though it does not clarify who, if anyone, is off-limits in an entity client; that’s instead covered in a comment). Until a couple of years ago, California permitted relationships with several caveats (including prohibitions when the relationship resulted from coercion or undue influence; was used as payment for services; or would result in incompetent representation); a 2019 rule change forbade such relationships but also clarified that if someone other than the client made the complaint, steps must be taken to find out whether the client would be unduly burdened by the investigation or charge. (See also this blog entry from my nerd friend Brian Faughnan, which also covers the Tennessee rules—Tennessee did not adopt 1.8(j) but covered sexual conflicts in the comments to its version of 1.7(a)(2) as a material limitation conflict.)

I was surprised to find out when researching this entry that the Rule has only existed for two decades. Before that, most states did not regulate this conduct. Instead, states would rely on other disciplinary rules to rein in lawyers whose client relationships went sideways.

Facially, the Rule or some version of it makes sense—clients are generally not coming to you on their best day. They’re vulnerable to whatever one might call the Florence Nightingale Effect as applied to lawyers. You’re paying attention to them and perhaps are one of few people on their side. And lawyers typically aren’t going to be exercising their best judgment when representing someone who they are secretly sleeping with.

Most states do carve out spouses and/or pre-existing relationships, but remember, all of the other rules (including, importantly, competence and material limitations) still apply. If you’re planning on representing your spouse or partner, make sure you know what you’re doing and think long and hard about the collateral effects should representation go south.

What may surprise non-lawyers, and maybe some lawyers, is that 1.8(j) does not come up in real life all that often, and when it does, Wisconsin does not typically impose harsh penalties, absent more. *Note: This is one Rule where the distinction between Wisconsin and some other states is very important. Not that attorney-client relationships are a good idea or allowed anywhere, but some other states will take a much more severe approach, and while the OLR and the Supreme Court look at past discipline to make charging and sanction determinations, in the #MeToo/8.4(g) era we may see a different approach here as well.

A search of the OLR compendium yielded only 8 hits for “20:1.8(j)” (though I know, anecdotally, there are more; the search engine is not great); one case resulting in suspension and involving other sexual misconduct discussed the rule in dicta.

Four were private reprimands, all of which seemed to involve uncomplicated facts. Client hires Lawyer, Lawyer works for Client, Lawyer and Client begin a consensual sexual relationship that did not exist before. It is unclear whether any of the relationships lasted (though at least one clearly did not last).

One case resulting in public reprimand involved a lawyer and client who began a relationship during representation, but eventually married and had children. This is a case that, if the only problem had been the 1.8(j) violation, would likely have resulted in a private reprimand, if that. (We never do know about cases that are dismissed or diverted at the investigation stage, after all.) However, according to the decision, the attorney was not honest with his firm or cooperative with the OLR; he attributed this to a desire to protect his client-turned-wife (which ultimately mitigated against a more serious sanction, and may be a scenario that the California rule would have covered differently).

One case involved a public reprimand, and finally, another involved a 90-day suspension; but, both involved additional misconduct beyond the 1.8(j) violation. Still, press coverage of cases like this tends to focus just on the sexual relationship and not on the several other counts, including misrepresenting the situation to courts and the OLR.

So, what to do? The easiest path, of course, is to refrain from getting into these situations with your clients in the first place. There are more than 250 million adults in the United States. A vanishingly small number of them will ever be your clients. Surely you can find happiness with one of the rest.

But, it being Valentine’s Day and all, I’ll acknowledge that sometimes your heart wants what it wants and your brain can’t shut it up. In that case, there are a few considerations. While 1.8(j) only covers sexual contact, romantic relationships that are not consummated may still run afoul of 1.7(a)(2), which deems a conflict to exist if representation of one client will be materially impaired by your responsibilities to another client, a former client, a third party, or by your own personal interests. How objective is your judgment in a situation like this? Tread carefully.

Also, I have not done a 50-state survey of this Rule, but at least in Wisconsin, SCR 20:1.8(j) only applies to current clients. Unlike, say, a situation involving a therapist and patient (which bars sexual contact for two years following termination of the therapeutic relationship), once the attorney-client relationship ends, consenting adults can proceed more or less as they please. But, attorneys need to make sure the attorney-client relationship has actually ended—the matter has concluded or the lawyer has appropriately withdrawn; a closing letter and final accounting, if required, have been sent out.

I also note that a 1.8(j) conflict (or, for that matter, a 1.7(a)(2) conflict involving a personal interest) is not imputed to other firm members, so if you really, really can’t wait and you have a colleague ready and competent to take over representation, that may be an option for you. But again, there should be a clear end to your involvement as attorney before you turn to your involvement as significant other. And I can’t promise that this approach won’t be met with eye rolls and snickering from your colleagues, but I can’t help you with that.

(Photo credit: Random Internet meme from five years ago.)