Lawyers and firms routinely screen for potential conflicts of interests when taking on new clients. Conflicts of interest are common grounds for bar complaints or legal-malpractice claims because they suggest that a lawyer is not meeting their duty of loyalty to a client but are putting their own interests ahead of a client’s.

In a more salacious form, conflicts can also arise when lawyers begin romantic or sexual relationships with their clients. Engaging in intimate relations with current clients threatens not only the lawyer’s professional reputation and law license, it also can pose significant risk to colleagues and law firm partners. Sanctions from the bar can vary from temporary suspension to disbarment, depending on the severity of the conduct.

Some law firms expressly prohibit their attorneys from engaging in sexual relations with clients, but not all state bars have a total ban on intimate relationships with clients. But just like conflicts of interest, a lawyer engaging in a personal romantic relationship with a client can put the lawyer’s duty of loyalty at issue.

Here are some things to know about the risks for lawyers in beginning romantic or sexual relationships with their clients.

The Risk of an Imbalance in Power

The rules do not prohibit a lawyer from representing a person with whom they have a preexisting intimate relationship. Consequently, attorneys and their firms routinely prepare wills for spouses or defend companies owned by domestic partners. Although such representations are permitted, the lawyer is still otherwise required to comply with other legal or ethical obligations, such as Rule 1.7, which advises against taking on a representation that could limit the lawyer’s independent professional judgment.

For intimate relationships that arise after an attorney-client relationship is formed, however, the rules are generally more restrictive. ABA Model Rule of Professional Conduct 1.8(j) provides: “A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.”

This rule reflects the fact that in an attorney-client relationship, the attorney typically holds a position of trust, confidence and obligation. In that way, “[t]he 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 to use the trust of the client to the client’s disadvantage.” Model Rule 1.8, cmt. [20].

Even where a nascent romantic relationship between attorney and client is consensual, the presumption is that the attorney took advantage of the special trust and confidence of a client. That is because it is understood that there is an imbalance of power between the attorney (who safeguards the client’s secrets and may be representing a client whose legal interests are at risk) and the client.

This power imbalance may be even more apparent in certain types of representations. For example, a client who is being counseled through a divorce or other domestic litigation may be especially vulnerable. If a personal relationship begins, it may be presumed that the client was not in the best headspace or that the client may have even misguidedly thought that agreeing to a relationship would benefit the merits of their legal case. The client may even view the attorney as a virtual guarantor of the outcome of all proceedings. That can additionally create undue risk in the event that the divorce does not pan out in the client’s favor. A bar or court may even conclude that the lawyer’s professional judgment was impaired by this personal relationship.

Engaging in an intimate relationship with a client can also create risks to confidentiality because lawyers and clients who share pillow talk, in addition to their professional communications, may be blurring lines. Notably, client confidences are only protected in the context of an attorney-client relationship. If a client is sharing information with their lawyer in their role as romantic partner, it may not be protected in the same way if it were disclosed in a professional, nonamorous setting.

For lawyers who represent organizations (like corporations), the Model Rule still prohibits a post-engagement sexual relationship with an individual employed by the client “who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.” Model Rule 1.8(j), cmt. [22]. The risk is the same.

In sum, the comments to Model Rule 1.8 make it clear: “Because of the significant danger of harm to client interests and because the client’s own emotional involvement renders it unlikely that the client could give adequate informed consent, this Rule prohibits the lawyer from having sexual relations with a client regardless of whether the relationship is consensual and regardless of the absence of prejudice to the client.” Model Rule 1.8, cmt. [20].

A Relationship May Pose a Conflict of Interest, Even Where the Rules Do Not Expressly Prohibit a Romantic Relationship

Not every state has adopted Model Rule 1.8(j). For example, Georgia has not amended its rules of professional conduct to specifically address this issue (although the General Assembly once considered a bill criminalizing attorney-client sexual relations). However, the rules on conflicts still prohibit Georgia attorneys from, for example, using information gained in the course of a professional relationship to that client’s disadvantage, or from continuing to represent a client where the lawyer’s own interests will adversely affect the representation. Engaging in a romantic relationship with a client that impairs the lawyer’s independent judgment or puts the client’s vulnerable state at risk is likely to still contradict the existing rules.

And there can be other risks for lawyers, besides bar grievances or malpractice claims. A lawyer accused of manipulating a client or engaging in a sexual relationship with a client may find themselves in a dispute with their insurance carrier about whether policy limitations or exclusions apply to limit or restrict coverage for grievances or claims.

By being aware of these risks, lawyers can avoid developing romantic relationships with existing clients—or can terminate attorney-client relationships if they wish to pursue a new romance instead.