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| Personal Relationships With Clients Q: I represent an institutional client, and while I hate to admit it, I am a bit smitten by the client’s representative. He and I have been working on a number of demanding matters, and the late nights have bred, I don’t know, the possibility of something I’m interested in. He’s made overtures, but I’ve rebuffed them. I want to do the right thing as an attorney, but confess that I am interested in something a bit more. If I proceed with a relationship, what are my parameters? A: Wow, my compliments (and thanks) for couching a delicate subject in very lawyer-like fashion. First, permit me to be naïve. You may be dancing around the “personal relationship” which is addressed at Rule 3-310(B) of the California Rules of Professional Conduct. In summary, if you have a personal relationship which may impact the representation, disclosure may be required. At the risk of indiscretion, this will require disclosure to someone other than your client’s representative, since representation of an entity requires waiver by someone other than the individual breeding the conflict. See Rule 3-600(E), and Comment to Rule 3-120. This is not “black letter,” since you do not propose to represent this gentleman, but I think the intent of the rule is clear. Visit those rules. The competence rule at Rule 3-110 is also of issue, depending upon how enamoured you are. But if I can cut through the legalese, forgive me if I assume you reference Rule 3-120, addressing sexual relations with clients. After all, you ask for parameters, and I’m open-minded. Since we are all grown ups, I will dispense with the embarrassingly graphic definition of sexual relations at subsection (A). Also, your facts do not indicate quid pro quo relations or coercion, as discussed at subsections (B)(1) and (2), respectively. So what are we left with? Forget the notion that this is a “no-sex-with-clients” rule. The question is otherwise an easy one…kind of. Rule 3-120(B)(3) provides that you shall not “continue representation of a client with whom [you have] sexual relations if such sexual relations cause [you] to perform legal services incompetently.” See Rule 3-110. I say “kind of,” since the State Bar Act also prohibits you from sexual relations “if the sexual relations would, or would be likely to, damage or prejudice the client’s case.” Cal. B & P Code Section 6106.9. This is one of those unfortunate rules where, forgive me, but if the client complains after the fact, you are in big trouble. Caveats are in order. There is a fortunate dearth of authority on this rule to date. However, subsection (D) says that the other attorneys in your firm shall not be subject to discipline if you do not participate in the representation after…well, you know. Good news, bad news. That suggests to me that if you do participate after the fact, there may be vicarious liability here. Trust me, your colleagues will not appreciate that. Or, you can always save it until the honeymoon, since the rule permits representation of spouses (and preexisting sexual partners) notwithstanding the sexual relations which may, or may not, stem therefrom. And one more thing. Tell your beau to review his employee handbook, and you should do the same. Forget discipline. This may be something that is regulated elsewhere, and at the risk of stymieing love, query whether your significant other means enough to lose your job. This column is intended to be informal and nonauthoritative, and does not represent the position of the San Diego County Bar Association. The discussion does not apply to everyone, and you should retain legal counsel to assist with your individual circumstances.
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