Ethics Opinions Every South Carolina Attorney Should Know: Part X, Having Sex with Clients

Posted Friday, June 11th, 2010 by Gregory Forman
Filed under Of Interest to Family Law Attorneys, Rules of Professional (Lawyer) Conduct, South Carolina Specific

Much harm can come to an attorney who has a sexual relationship with a client.  South Carolina Rule of Professional Conduct 1.8(m) states:

A lawyer shall not have sexual relations with a client when the client is in a vulnerable condition or is otherwise subject to the control or undue influence of the lawyer, when such relations could have a harmful or prejudicial effect upon the interests of the client, or when sexual relations might adversely effect the lawyer’s representation of the client.

It is helpful, indeed required, for an attorney to care about the client’s problem.  As Comment One to Rule of Professional Conduct 1.3 notes “A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”  However, the practice of law requires a certain level of professional detachment.  When an attorney takes on the emotions of the client, the reasoned advice and guidance that law requires becomes difficult, if not impossible.  The emotions that are hopefully part of a sexual relationship can cloud judgment; allowing one’s judgment to be clouded when representing a client is dangerous to both the client and the attorney.  That is why the law heavily discourages attorneys from engaging in sexual relations with a client unless the sexual relationship predates the attorney-client relationship.  The few times my wife has needed counsel I have referred her to other attorneys because the emotions of our own marriage can make it difficult for me to give, or for my wife to receive, legal advice on a purely rational level.

In In the Matter of Hoffmeyer, 376 S.C. 221, 656 S.E.2d 376 (2008), despite self-reporting to the office of Disciplinary Counsel, and despite the hearing panel recommending only a public reprimand, the Supreme Court found the following conduct demonstrated an unfitness to practice law, warranting a nine month suspension: the attorney engaged in a sexual relationship with client; belittled client’s husband during a confrontation at attorney’s house by using information he obtained through his representation of client; sewed up client’s self-inflicted wrist wound to avoid use of the incident in client’s child custody dispute; obtained a waiver of liability for an individual’s injuries, which were caused by client at attorney’s house; failed to inform client that she should seek independent legal advice; and failed to inform the family court of client’s problems with substance abuse and eating disorders.  See also, In the Matter of Keitt, 321 S.C. 373, 468 S.E.2d 875 (1996) (ninety day suspension for engaging in a sexual relationship with a client and subsequently making false statements to a family court judge when questioned about that relationship).

The lesson of Hoffmeyer: don’t represent people with whom you are having sexual relations.

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