Sex with a Client – Is It Ever Okay?
As a Research Lawyer, my job is to give advice to fellow lawyers. Fortunately, in my 30-year career there’s one topic on which I’ve never had to give an opinion: Whether it’s ever acceptable for a lawyer to have sex with a client.
You may have a “gut instinct” for the prudent answer. But a few Law Society disciplinary hearings address this question specifically. In each of them, the lawyer had a consensual sexual relationship with a client – and in each of them the lawyer was suspended from practice for a period. The inherent conflict of interest is what raised alarm bells.
In Law Society of Upper Canada v. Macri, 2017 ONLSTH 19 (CanLII), a family lawyer agreed to represent a divorcing stay-at-home mother, with two young children. She was financially dependent on her husband and couldn’t easily fund the litigation for her high-conflict divorce.
Literally just a few days into the retainer, they started a “secret consensual sexual relationship”. They stopped after a few months, and the lawyer went on to capably represent the client in her divorce. He even loaned her $50,000 for her legal costs, but she later refused to pay. Things turned ugly. The client reported her sexual relationship with the lawyer to the Law Society of Ontario (LSO).
The LSO Tribunal held a disciplinary hearing, and concluded the lawyer had engaged in professional misconduct.
The clandestine sexual relationship gave rise to a clear conflict of interest. The client’s dire finances, and her highly-contested matrimonial proceedings, all should have signalled to the lawyer that she was vulnerable. As the Hearing Panel said (at para. 23):
It is a lawyer’s responsibility to exercise the utmost caution and restraint before engaging in such a relationship with a client. As noted by counsel for the Law Society, there is a basis to conclude that it may never be appropriate to engage in a sexual or other personal relationship with a client in a family law matter. Given the admission there was a conflict in this situation, it is unnecessary for us to resolve this issue in this case.
The lawyer’s choice to keep the relationship secret also hinted at his awareness that it was wrong – or at least ill-advised. The Panel concluded the lawyer had engaged in professional misconduct. It accepted a joint submission, and suspended him for 2.5 months, imposed a $2,500 fine, and another $2,000 in costs penalties.
The Macri case was from 2017. And here’s a little update for 2022: Having sex with a client is still unwise.
We know this from a recent LSO disciplinary decision in Law Society of Ontario v. Tweyman, 2021 ONLSTH 166 (CanLII). The Hearing Panel considered a scenario where a Family lawyer admitted to having a romantic or sexual relationship with a client who was just getting divorced from her husband of 13 years.
Although the lawyer’s meetings with the client were initially professional, this gradually drifted into flirtation. Eventually they engaged in numerous consensual sexual encounters. The Panel found that a conflict of interest arose sheerly because of the lawyer’s own interest in having a romantic/sexual relationship with the client. That personal interest alone gave rise to a substantial risk that the lawyer’s loyalty to, and representation of, the client would be materially and adversely affected. As the tribunal put it (at para. 20):
It is virtually inevitable that there will be a conflict of interest where a lawyer acts in a family law dispute and has a romantic/sexual relationship with their client. Having a romantic/sexual relationship with a client who needs assistance with a dispute over a previous romantic/sexual relationship is inherently fraught with substantial risk of material adverse effect.
Importantly, the Panel noted that its finding of a conflict of interest did not hinge on whether the client was actually vulnerable or not. It said (at para. 25):
As noted above, the nature of a family law dispute is such that a conflict of interest will virtually inevitably arise from a romantic/sexual relationship between a lawyer and client regardless of vulnerability. But to be clear, such a relationship with a more vulnerable client is worse. As a fiduciary, a lawyer must take particular care not to take advantage.
In light of his breach of the Rules of Professional Conduct, the lawyer was suspended from practice for two months, under a joint penalty submission.
Still not convinced? Here are some other, earlier LSO professional discipline cases involving lawyer-client sexual relationships – all of which resulted in the lawyer being suspended from practice for two months or more:
· Law Society of Upper Canada v. Joseph, 2003 CanLII 39550
· Law Society of Upper Canada v. Hunter, 2007 ONLSHP 27
· Law Society of Upper Canada v. Carlesso, 2014 ONLSTH 129
So with these cases in mind, I’ll offer this informal advice to any lawyer contemplating the question, “Is it okay to have sex with my client?”
It seems to me, the short answer is “No.”