Opinion
October 15, 1998.
Orders Entered October 15, 1998.
On February 4, 1998, we published for comment a proposal to amend Rule 1.8 of the Michigan Rules of Professional Conduct to limit sexual relationships between lawyers and clients. 456 Mich. 1223 (1998). As always, we indicated that publication of this proposal did not mean that the Court would issue an order on the subject, nor did it imply probable adoption of the proposal in its then-current form.
After careful study, we have decided not to amend MRPC 1.8. The Michigan Rules of Professional Conduct adequately prohibit representation that lacks competence or diligence, or that is shadowed by a conflict of interest. With regard to sexual behavior, we note that the Michigan Court Rules provide that a lawyer may be disciplined for "conduct that is contrary to justice, ethics, honesty, or good morals." MCR 9.104(3). We also observe that the Legislature has enacted criminal penalties for certain types of sexual misconduct.
Mindful of the concerns of those who support the proposal, we emphasize that a lawyer bears a fiduciary responsibility toward the client. A lawyer who has a conflict of interest, whose actions interfere with effective representation, who takes advantage of a client's vulnerability, or whose behavior is immoral risks severe sanctions under the existing Michigan Court Rules and Michigan Rules of Professional Conduct.
By separate order, we are amending the official Comment to MRPC 1.8 to reflect the substance of this order.
I believe the Rules of Professional Conduct should specifically prohibit sexual relations between lawyers and clients.
Much evidence exists that a rule is needed. The American Bar Association cited the ethical dangers of lawyer-client sex in a 1992 formal opinion (92-364). Several state bar associations have explicitly banned sex between lawyers and their clients, including California, Wisconsin, Florida, Iowa, Minnesota, New York, Oregon, West Virginia, and North Carolina. Other professions have recognized the need and have adopted a rule, among them the medical and teaching professions. We have been requested to adopt a rule by the Michigan Attorney Grievance Administrator, the Family Law Section, Standing Committee on Grievance, and Representative Assembly of the State Bar of Michigan, among others.
Although most individuals do not require protection by the legal profession respecting their dealings with an attorney, many do. Rarely is a person more vulnerable to an inappropriate sexual overture than from a trusted legal advisor when the person is engaged in a contentious legal struggle. The Court is remiss in failing to recognize the importance of the ethical problem presented by sexual relations between attorney and client by amending the rules to explicitly prohibit it.