April 2019

Kissing Clients

Jennifer K. Gilman

Gordon Rees Scully
Mansukhani, LLP

It occurs to me – not for the first time – that it’s difficult to turn off the part of my brain that is well-versed in the California Rules of Professional Conduct and attorney ethics in general.  So, even when I’m out for a night on the town with friends and they are gossiping away about scandalous office liaisons, I’m thinking of legal ethics.

Consider the story of my dear friend Ben, a fellow attorney whose name has been changed to protect the innocent.  He was talking enthusiastically about several trips he had to make between San Diego and Sacramento recently in order to consult with his corporate client. 

Typically, these trips do not inspire excitement and can be horribly dull – but, he reported with an arched eyebrow, they may become much more interesting very soon.  When advising his client, he often meets with the CFO, the CEO, the Controller, and the Human Resources Director to answer questions and advise them as to the legality of certain actions.

During his last trip, he and the Controller bonded over photos of Ben’s beloved parrot, Fido, and the Controller’s fur baby, a cat named Azreal.  They shared dinner, several glasses of wine, and, by all accounts, several passionate kisses.

Our mutual friends were excited for Ben, who has been single for far too long (in our collective opinion).  They were asking questions like: “Is he nice?”  “Is he smart?”  “Where do you see this going?”  “Would you move to Sacramento?”  “Does this guy have a brother?” 

Not me.  I was thinking of Rule 1.8.10 of the California Rules of Professional Conduct.

California Rule of Professional Conduct 1.8.10 (a) seems straightforward enough: “A lawyer shall not engage in sexual relations with a current client who is not the lawyer’s spouse or registered domestic partner, unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.”  This leads to two questions: (1) Is the Controller Ben’s constituent client, given that Ben represents the corporation?  And, (2) Is a kiss considered “sexual relations?”

Pursuant to Rule 1.13 (a) of the Rules of Professional Conduct, “A lawyer employed or retained by an organization shall conform his or her representation to the concept that the client is the organization itself, acting through its duly authorized directors, officers, employees, members, shareholders, or other constituents overseeing the particular engagement.”  It seems apparent the Controller is one of Ben’s constituent clients who is overseeing the engagement he has with the corporate entity. 

Further, Comment [2] to Rule 1.8.10 states “When the client is an organization, this rule applies to a lawyer for the organization (whether inside counsel or outside counsel) who has sexual relations with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.  (See rule 1.13.)”  Comment [2] is squarely on point here, particularly to the extent the Controller is routinely present with the CEO, the CFO, and the HR Director and is a participant in the attorney-client meetings Ben leads.

But it was just a kiss!  Or … um, three?  That does not constitute “sexual relations.”  Does it? 

Under California Rule of Professional Conduct 1.8.10 (b), “For purposes of this rule, “sexual relations” means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.”  We must ask ourselves, then, if mouths and tongues are “intimate parts.”  After all, attorneys actively use our mouths and tongues in courtrooms when we speak, argue, and otherwise advocate for our clients. 

While this may be so, Ben and the Controller were not engaged in advocacy or persuasion.  Rather, their particular use of their mouths, coupled with the concomitant sexual gratification engendered by a kiss, fits the definition of “sexual relations” under the rule.

Ben protests.  Surely “intimate parts” are those parts we cover with bathing suits when swimming in or sunbathing by a public pool.  My interpretation is far too conservative for him.  By my standards, he argues, if he fixes the tag on the back of my shirt and, in so doing, grazes the nape of my neck, he has touched an intimate part.  If he has schmutz on his lapel and I brush it off, I have touched an intimate part.  And a celebratory hug after a big win?  Forget it!

Ben is a worthy adversary, and he presents compelling arguments – but these examples are acts that are not for the purpose of sexual arousal, gratification, or abuse.  He scowls at my response.

So, what now?  Well, Ben does not want to hear this, but he must not engage in sexual relations with the Controller.  In my view, that means the smooching must come to an end.  It is not enough to say “well, we didn’t have sexual intercourse” or “we didn’t get to know one another in the Biblical sense.”  Kissing a client, even if the attorney exercises self-restraint with respect to any further sexual activity, runs afoul of California Rule of Professional Conduct 1.8.10. 

Furthermore, even if one accepts Ben’s argument that a mouth is not an intimate part, he must also comply with California Rule of Professional Conduct 1.7.  As such, Ben must seriously consider whether his loyalty and independent judgment – essential elements in an attorney-client relationship – are compromised here. 

Keeping in mind Rule 1.13, if there exists a significant risk that Ben’s ability to consider, recommend or carry out an appropriate course of action for the client will be materially limited as a result of his relationship with the Controller, he will violate that rule. 

So, alas, California Rule of Professional Conduct 1.8.10 is a wet blanket and Ben must find love elsewhere.  Or perhaps he will find new employment, fall madly in love, and live happily ever after with the Controller.  I’m going to hope for the latter.