Handling Not Only the Bankruptcy but the Client

I referred a friend to an attorney for whom I used to work. He handled a bankruptcy proceeding for her. The two started dating 2 days after the hearing. This attorney is currently going through a divorce. Are there rules that govern attorneys dating clients?

As is often the case in replying to the questions we receive, we must remind you that, though we are here to assist lawyers, you are reaching LCL’s clinical staff (non-lawyer mental health clinicians). Despite our consequent incompetence to answer your question about rules, a perusal of the Massachusetts Rules of Professional Conduct (www.mass.gov/obcbbo/rpc1.htm) did not find any comment, one way or the other, about personal relationships with former clients. To get a valid opinion on the matter, we would direct you (if you are an attorney) to the Ethics Hotline of the Mass. Board of Bar Overseers (Mon./Wed/Fri., 2:00-4:00 pm at 617-728-8750).

Rules aside, and considering the situation psychologically, a dating relationship starting shortly after the end of a marriage (or other long-term bond) is likely to be a fleeting, transitional affair – but your friend must realize that.

From another angle, one would question whether the lawyer could be seen as exploiting his client, given her dependent position and his position of power/authority. That concern, if applicable, would seem to apply most clearly in an extended and intensive kind of case (or when the professional is, say, a teacher or psychotherapist). While initiating a romantic liaison in your friend’s situation may be indicative of questionable judgment, it probably falls somewhere short of moral bankruptcy.

ADDENDUM: Our friends at the LOMAP program have been kind enough to provide some added sources to consider. A downloadable pdf pamphlet ($20) from the American Bar Association entitled Formal and Informal Ethics Opinions suggests that “a sexual relationship between lawyer and client may involve unfair exploitation of the lawyer’s fiduciary position, and/or significantly impair a lawyer’s ability to represent the client competently, and therefore may violate both the Model Rules of Professional Conduct and the Model Code of Professional Responsibility.”

The book Ethical Lawyering in Massachusetts (Bolan & Laurence, ed.), available at www.mcle.org, notes a number of ways that engaging in a sexual relationship with a client is risky to the lawyer’s practice (including potential for civil suit, undercutting attorney-client privilege, and conflict of interest), to the point that some states (not Massachusetts) explicitly prohibit such relations with clients (except when the personal relationship predated the professional one).

But since it sounds as if your friend and your former employer delayed dating until they were attorney and ex-client, we’re back in a grey area.

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