Some conflicts more apparent than others
Some conflicts of interest are obvious such as when, for instance, an attorney represents two clients with adverse interests. Other conflicts are more subtle and are adversely nurtured in a more social context such as when the relationship between an attorney and client is no longer professional but becomes intimate.
In a Hollywood romance, a handsome attorney may fall in love with his beautiful client and they live happily ever after with no consequences to their action. In reality, a sexual relationship between an attorney and a client is not allowed in most jurisdictions because it diminishes the fiduciary relationship and creates an inequality of power.
In the attorney-client relationship, nothing should interfere with the attorney’s duty to represent the client with objectivity, confidentiality, competence and diligence. Oftentimes, when a client meets an attorney, the client is emotionally and financially vulnerable due to their personal circumstances. It is also not difficult to imagine that a romantic relationship would likely impact the attorney’s judgement and consequently destroy the client’s trust and confidence in the attorney. Furthermore, the attorney-client privilege may be waived if it becomes unclear whether confidential information was provided in the professional or personal setting.
Unlike in some other conflict of interest situations, this conflict cannot be waived due to the substantial risk of harm to the client’s interest and the client’s likely inability to render adequate informed consent due to his or her emotional involvement.
When the client is an organization, the American Bar Association’s Model Rules of Professional Conduct prohibit an attorney from having a sexual relationship with an employee of the organization who regularly works with the attorney on the organization’s legal affairs. Nevada Rules of Professional Conduct do not include the same restriction. In Nevada, the prohibition does not apply to the client who is an organization. However, any reasonable attorney should be mindful of any potential impaired judgement resulting from a sexual relationship with an employee of the client.
There is only one exception to this prohibition. A consensual sexual relationship that predates the creation of the attorney-client relationship is not specifically forbidden. However, such relationship can result in the violation of other rules of professional conduct as the attorney’s ability to represent the client will be materially limited by that relationship.
Typically, if one attorney in the firm has a conflict of interest, then that conflict is imputed on all attorneys in the firm. However, a conflict of interest resulting from a sexual relationship with a client is personal and is not applied to associated attorneys.
Sometimes, a conflict of interest in a social scenario can arise as a result of slightly less controversial circumstances. For example, an attorney related to another attorney cannot represent a client in a matter directly adverse to a person represented by the attorney’s parent, child, sibling or spouse unless informed consent is given by the client.
The rules are very clear. In the majority of jurisdictions, any attorney-client intimacy during the existence of the professional attorney-client relationship is strictly prohibited. The violation of this rule can result in a bar complaint and lead to disciplinary action for unethical conduct.
Natalia Vander Laan is a Minden attorney practicing estate planning, family law, and workers’ compensation.