In our last post, we discussed how the State Bar of California is proposing significant changes to the attorney conduct rules, including those covering the always controversial issue of sexual relationships with clients. Specifically, this proposed rule departs from longstanding precedent by instituting a total ban on sexual conduct with clients absent the existence of either a marriage or a prior relationship.
While the ethics commission formed by the state bar has several more months before it has to submit its final draft of the proposed rules to the California Supreme Court for approval, supporters have already indicated that the proposed rule banning sexual relationships with clients is in line with the approach taken by the majority of jurisdictions.
This naturally raises the question as to what the law here in Florida has to say concerning sexual relationships between attorneys and clients.
The Rules Regulating the Florida Bar expressly declare that an attorney cannot engage in sexual conduct with either a client or a representative of a client that "exploits or adversely affects the interests of the client or the lawyer-client relationship."
The basis for this rule stems from a recognition that attorneys have a duty to exercise independent professional judgment on behalf of clients and how the existence of a sexual relationship could severely compromise the ability to do this. It also stems from the recognition that a sexual relationship could severely undermine the mutual trust that forms the foundation of any lawyer-client relationship.
Accordingly, sexual conduct will be found to violate the rule, regardless of when it began relative to the lawyer-client relationship, if it does any of the following:
- Exploits the lawyer-client relationship
- Negatively affects the client's interests
- Results in a conflict of interest between the client and lawyer
- Negatively influences the lawyer's independent professional judgment while representing the client
It's worth noting that while the rule presumes that any sexual conduct that commences after the establishment of the lawyer-client relationship either exploits or adversely affects client interests, the affected lawyer can nevertheless rebut this presumption by a preponderance of the evidence.
Two more important points to keep in mind concerning Florida's rule against this type of misconduct include:
- A "representative of a client" essentially includes an agent of the client vested with the authority to supervise, direct or regularly consult with the organization's lawyer, or otherwise bind the organization through action or inaction.
- A sexual relationship between a lawyer and client is permissible where the client is being represented by another lawyer in the same firm. However, the lawyer in the relationship cannot provide any legal services to the client and must be screened from access to their file.
Here's hoping this information proved helpful. As always, if you have concerns about legal malpractice, consider speaking with an experienced legal professional as soon as possible.