Samuel C. Stretton.

Before resolving a liability matter, advise your client to seek independent legal advice first.

I made a mistake in a case and missed a deadline. I wish to resolve the matter in a fair fashion with the client. The case is worth about $8,000 and I am would like to meet with the client and offer the client $8,000 to resolve he matter and sign a release so I am released from liability. Can I do this?

There is a problem with having the client sign a release and paying the client what you consider a fair resolution. This would clearly violate several Rules of Professional Conduct. Rule of Professional Conduct, Rule 1.8(h) precludes a lawyer from making an agreement limiting a lawyer's liability to a client for malpractice unless the client is advised in writing to seek the advice of independent counsel. The client could waive seeking independent counsel, but must waive in writing. The lawyer can do the release with the client, but only if the lawyer has advised that person in writing of the desirability of seeking independent counsel and that person is given a reasonable opportunity to see the advice of independent counsel.

The letter advising of independent counsel must be clear. The letter does not require the former client meet with independent counsel, but only requires the client be properly advised and given adequate time to do so.

Failure to do this can result in professional discipline. The first time—if there is no prior record—is usually relatively minor professional discipline. But if such conduct continues, it could result in more serious discipline. Criminal defense lawyers should be careful in this area if they have clients enter plea agreements that waive any future claims which would challenge the effectiveness of the lawyer's representation.  Again, a similar letter would be required.  Therefore, criminal lawyers can be affected also.

For malpractice in the criminal area, there usually has to be a prior finding of ineffective assistance. Therefore, advising clients to seek independent legal advice is important not only for settling malpractice claims with a client, but if seeking a waiver of a claim for ineffective assistance if that is a requirement of the fee agreement. Any lawyer should be very careful not to make either of those requests.

Law is a profession and the client's rights have to be protected. Further, in advising clients to settle a case against the lawyers, the lawyer has an obligation to fully advise the client of all options and the reasons under Rule 1.4. Although the lawyer may be well-intentioned about offering a reasonable settlement, the lawyer is not in a position to make that evaluation any longer, at least without giving the client the right and time to seek independent counsel. Once the client receives this letter and waives the right to seek independent counsel, then the settlement can take place.

Entering into a romantic relationship with a client undermines the independence of the professional relationship.

What is the consequence of having a sexual relationship with a client if I am representing the client?

In this day and age, any lawyer would be very foolish and very unprofessional to have a sexual relationship with an ongoing client. Rule of Professional Conduct 1.8(j), which was added in approximately 15 to 20 years ago specifically prohibits a lawyer from having a sexual relationship with a client unless a consensual relationship existed between them before the lawyer/client relationship had begun.

If for whatever reason there develops a romantic interest or desire to date between a lawyer and a client, the lawyer must end the legal representation and send the client elsewhere for representation. If the lawyer then wants to date the client and the representation is concluded, perhaps that would be OK. But that's not the better practice.

Lawyers are professionals and entering into a romantic relationship with a client undermines the independence of the professional relationship. Further, it might not be in the client's interest to seek other counsel. The fiduciary duty a lawyer owes their client is common law based and is very serious obligation. This duty not to have sexual relations with a client has now been memorialized in Rule 1.8(j).

The Disciplinary Board has started to issue decisions where potentially very serious discipline might be imposed on lawyers who choose to have relationships with their client. It is particularly true if the relationship injures the client in terms of the representation in the underlying cases.

Lawyers have to be aware, particularly as noted in Comment 19 to Rule 1.8, that sexual relationships with clients also include sexual relationships with employees of a corporation the lawyer is representing. If these corporate employees are persons with supervising powers or who consult with the lawyer regularly on the issues involving the corporation. This would, in effect, also preclude romantic relationships between an in-house counsel for a corporation and perhaps outside counsel hired by the corporation.

An interesting issue that sometimes arises is whether a lawyer can have a relationship with a client's spouse. Although Rule 1.8(h) does not address that issue, clearly that would create a conflict of interest between the lawyer and client and could seriously undermine the attorney-client relationship and injure the client in any ongoing litigation. Such conduct would not be viewed favorably by the Disciplinary Board of the Pennsylvania Supreme Court or probably the Pennsylvania Supreme Court.

The best advice any lawyer can give a fellow lawyer who is contemplating a sexual relationship with a former client is just don't do it. It is unfair to the client and undermines the professionalism. Further, from a purely practical standpoint, it could well cost a lawyer their right to practice law for some period of time.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.