VSB Standing Committee on Legal Ethics Seeking Public Comment on Legal Ethics Opinion 1853

Additional Info view Legal Ethics Opinion 1853 (PDF file)

Sexual Relationship with a Client 

RICHMOND - Pursuant to Part Six: Section IV, Paragraph 10(c)(iii) of the Rules of the Supreme Court of Virginia, the Virginia State Bar’s Standing Committee on Legal Ethics (“Committee”) is seeking public comment on proposed advisory Legal Ethics Opinion 1853, Sexual Relationship with a Client.

This proposed opinion generally addresses the issues involved when a lawyer enters into a sexual relationship with a client during the course of the representation.  While Virginia’s Rules of Professional Conduct contain no specific prohibition against sexual relationships between lawyer and client, the Committee advises that such conduct could result in situations deemed unethical under the Rules. The lawyer must determine whether in the specific circumstances such conduct (1) jeopardizes the lawyer’s ability to competently represent the client (Rule 1.1), (2) involves exploitation of the lawyer’s fiduciary relationship with the client, (3) interferes with the lawyer’s independent professional judgment (Rule 2.1), (4) creates a conflict of interest between the lawyer and the client (Rule 1.7(a)(2), Rule 1.7 Comment [10] or Rule 1.8(b)), (5) jeopardizes the duty of confidentiality owed to the client (Rule 1.6(a)), or (6) potentially prejudices the client’s matter (Rule 1.3(c)).  Additionally, a lawyer who intentionally uses the fiduciary relationship of lawyer and client to coerce sexual favors from a client may be found to have violated Rule 8.4(b)’s prohibition against a “deliberately wrongful act that reflects adversely on the lawyer’s fitness to practice law.”   In this proposed opinion, the Committee concludes that a lawyer should refrain from entering into a sexual relationship with a client as client consent will rarely be sufficient to eliminate any potential ethical violation.  In most situations of this type the client’s ability to give meaningful and cogent consent is vitiated by the lawyer’s potential undue influence and the client’s emotional vulnerability.  If a problem arose, the lawyer would be called upon to show that the lawyer’s conduct did not violate any of the aforementioned ethical concerns, in spite of the consent.

Inspection and Comment
The proposed advisory opinion may be inspected at the office of the Virginia State Bar, 707 East Main Street, Suite 1500, Richmond, Virginia 23219-2800, between the hours of 9:00 a.m. and 4:30 p.m., Monday through Friday.  Copies of the proposed advisory opinion can be obtained from the offices of the Virginia State Bar by contacting the Office of Ethics Counsel at 804-775-0557, or can be found at the Virginia State Bar’s website at http://www.vsb.org.

Any individual, business, or other entity may file or submit written comments in support of or in opposition to the proposed advisory opinion by filing ten copies with Karen A. Gould, the Executive Director of the Virginia State Bar, not later than November 30, 2009.

Updated: Oct 21, 2009