Lawyers should never have consensual sexual relations with a client. The consequences can be severe.

I am a lawyer who has had a sexual relationship with a client, which has now ended. Is there anything I should be concerned about?

Samuel C. Stretton.

The answer is yes. You should be concerned. For years, there was no specific prohibition about having a sexual relationship with a client, although many legal commentators saw it as a blatant conflict of interest, which would violate Rule 1.7 of the Rules of Professional Conduct. About 10 or 15 years ago, the specialized conflict of interest Rule 1.8 was amended. Rule 1.8(j) was added, which specifically precludes a sexual relationship with a client.

"A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."

In other words, lawyers are never to have a sexual relationship with a client unless they were dating prior to when their attorney/client relationship began. Even then, it is probably better not to. If a lawyer wishes to have sexual relations with a client then the lawyer must end the attorney/client relationship and send the client to another lawyer before engaging in a sexual relationship.

Comment 17 of Rule 1.8 of the Rules of Professional Conduct is very clear why sexual relations with a client cannot be allowed. It states, "The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. The relationship is almost always unequal; thus, a sexual relationship between lawyer and client can involve unfair exploitation of the lawyer's fiduciary role, in violation of the lawyer's basic ethical obligation not to use the trust of the client to the client's disadvantage. In addition, such a relationship presents a significant danger that, because of the lawyer's emotional involvement, the lawyer will be unable to represent the client without impairment of the exercise of independent professional judgement." See Comment 17 to Rule 1.8.

It is interesting also to note Comment 19 of Rule 1.8, which talks about a lawyer representing an organization such as a corporation or another type of entity. Rule 1.8(j) prohibits a lawyer from having a sexual relationship with a constituent of the organization who supervises, directs, or regularly consults with that lawyer concerning the organization's legal matters. See Comment 19 to Rule 1.8. If one is representing a corporation and has a relationship with the vice-president or president of that corporation, or some high-ranking corporate officer, or board member, that would be prohibited under the comment.

In the past if there was a consensual relationship with a client, normally this did not result in major discipline. In one case several years ago, there was a case where a lawyer received a censure for having sexual relations with a client, but primarily because he lied to his firm about the relationship.

A recent decision decided April 22 by the Pennsylvania Supreme Court in an opinion written by Justice Sallie Mundy titled Office of Disciplinary Counsel v. Altman, Supreme Court No. 2623, Disciplinary Docket No. 3, (PA, April 22, 2020) changed the landscape in professional discipline in sexual relations with clients and in evaluating the nature of professional discipline.

In the Altman case, Jonathan Altman had a consensual relationship with his client. He represented her for four or five years and the relationship lasted for about a month in the middle of the representation. The Pennsylvania Supreme Court disbarred him. The court disbarred him in large extent because the court didn't think he showed enough remorse. One could differ in reading the facts in that case about his lack of remorse, but what was particularly upsetting with the decision is that the court disbarred him even though he presented excellent character testimony, and had practiced for 45 years without incident, or prior discipline. That duration of practice without prior discipline is oftentimes seen as a strong mitigator. The court surprisingly rejected that type of mitigation because the court thought Altman didn't have enough remorse or concern for the victim.

In the Altman case, the victim only complained years later after Altman filed a suit against her for legal fees owed.

The court also complained that he loaned her approximately $30,000. He then had himself repaid out of the settlement of her house. Although obviously one should never loan a client money or do business with a client without a letter telling them to get independent counsel (Rule 1.8 (a)), in this case, Altman had testified that he was afraid she would tell his wife about their affair. The purpose of lending her the money was to help her enhance the value of her house, which she had allowed to become rundown, so she could get a better sale price in her divorce proceeding. It is not an uncommon scenario when a lawyer is having a relationship with a client that perhaps the lawyer is helping the client in some fashion.

It is clear as a bell that lawyers should not have sex with a client. It is wrong, but now, the Pennsylvania Supreme Court has raised the consequences. Though not every case would be a disbarment, the language in the Altman case is severe, and a lawyer could potentially expect serious discipline. The traditional mitigating factors seem to be given little or no weight by the Supreme Court, under the misguided belief that the lawyer had to show more concern for the victim, if the Altman decision is read closely.

Hopefully the Altman case is an exception. But if it's not and if the analysis for the nature of discipline with the downgrading of what used to be considered significant mitigation is followed in future cases, the Pennsylvania disciplinary system's approach to professional discipline, which considers professional discipline individually, will be seriously modified. That would be a major loss. Pennsylvania has always been very innovative in the nature of discipline as opposed to other states in the world of legal professional discipline.

The tone in the Altman case seems to suggest a new day with much harsher discipline, not only for having sex with a client, but also for other more serious infractions. Again, time will tell whether or not the Altman decision stands as an exception, or whether now there will be a new type of analysis for the nature of professional discipline.

The most basic lesson taken from the Altman case is to not have consensual sexual relations with a client. The consequences can be substantially severe.

A lawyer should not think about writing something while they are representing a client.

I handled a very interesting legal case that had a fair amount of publicity. I have been thinking of writing a book about the case. Can I do so?

Lawyers, like everyone else, have First Amendment Rights to write about cases and issues. A lawyer has a right to write a book about famous cases they are handling. But there are two rules that have to be considered.

The first rule is about confidentiality, which is Rule 1.6 of the Rules of Professional Conduct. As noted in other articles, confidentiality rules are far broader than the old, traditional confidence and secrets of the statutory attorney/client privilege and the common law attorney/client privilege. Rule 1.6 makes confidential anything relating to representation. That is a very broad approach to the attorney/client relationship.

If one is writing a book, perhaps one should get permission from the client to get into more specifics. Otherwise, the lawyer, in writing a book, is left with the trial record, and other pieces of information that are of public record, such as what was written in newspaper articles. Violating client confidentiality can be a problem under Rule 1.6, even in an attempt to write a fair and good book, which could have serious consequences. The other important rule is Rule 1.8(d). 1.8 is the specific conflict rule. 1.8(d) states as follows, "Prior to the conclusion of representation of a client, a lawyer shall not make or negotiate an agreement giving the lawyer literary or media rights to a betrayal or account based in substantial part on information relating to the representation." See Rules of Professional Conduct Rule 1.8(d).

Comment 9 to Rule 1.8 helps to clarify that situation. "An agreement by which a lawyer acquires literary or media rights concerning the conduct of the representation creates a conflict between the interests of the client and the personal interests of the lawyer. Measures suitable in the representation of the client may detract from the publication value of an account of the representation. Paragraph (d) does not prohibit a lawyer representing a client in a transaction concerning literary property from agreeing that the lawyer's fee shall consist of a share in ownership in the property, if the arrangement conforms to Rule 1.5 and Paragraphs (a) and (i)."

Rule 1.5 is the fee rule, which precludes excessive fees. Paragraph 1.8(a) requires a letter to the client to get independent counsel if a lawyer is doing business with a client, and 1.8(i) prohibits a lawyer from acquiring a propriety interest in a cause of action unless there is a lien or a contract.

There are times when a lawyer can write about a case or cases without the client's consent. Obviously a third person can certainly write a story about a crime without the person's consent. Truman Capote's famous book in the late 1950s titled "In Cold Blood" is a classic example. A lawyer, at times, can write about a case as long as the confidential information is not divulged. Trials in the public domain can be written about.

One of the major concerns for a conflict is obviously an interest in making this story more sensational. A case that goes to trial might be a better story than one that breaks down in a plea. The plea might be better for the client, but the trial might be better for the book sales. Therein lies the conflict.

The best practice is not to be worried about writing an article on a particular case, and to just represent the client. Perhaps, years later if the case had some great significance, a lawyer might reconsider and write something, whether it is a book, article or short story.

In conclusion, it is better practice for a lawyer not to think about literary rights or writing something while they are representing a client. If, years later, one wants to do so, then Rule 1.8 and Rule 1.6, as noted above, should be carefully considered and complied with. On the other hand, articles and novels that discuss interesting cases are always welcome and worthwhile. They often enrich and benefit the legal profession.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 47 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 103 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.