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Ethical Dilemma of the Week: Dating a Former Client

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By Mark Wilson, Esq. on April 14, 2015 11:57 AM

Welcome to the first in what we hope to be a continuing series called "Ethical Dilemma of the Week," in which we try to make sense out of strange P.R. quandaries that lawyers may or may not find themselves in.

For our inaugural Ethical Dilemma of the Week, we ask, "How long do you have to wait before you can date a former client?"

You Had Me at 'Summary Judgment'

States using the ABA Model Rules have a pretty clear guideline: "A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."

California, one of the states that bucks the ABA rule trend, permits sexual relations with a current client unless and until "such sexual relations cause the member to perform legal services incompetently in violation of rule 3-110."

But what about former clients? Once representation is complete, the client isn't a client anymore, so lawyers in ABA Model Rule jurisdictions should be free to date to their hearts' content. Indeed, just last year, the Louisiana Supreme Court declined to apply to former clients the prohibition on dating current clients.

Justice Jeannette Knoll concurred to emphasize that a lawyer's ethical duties to the client don't stop just because representation is over: "Inherent in the duty of loyalty is the corresponding duty to protect the client's best interests. While this duty primarily impacts ongoing representation, the attorney must continue to act in a way so as not to actively harm the former client's best interests even after the professional relationship ceases."

She went on to point out the problem in the case before the Court -- namely, that, while representation was technically over because the client no longer needed the lawyer's services in a divorce action, Louisiana requires a six-month waiting period before a divorce is final.

Just Wait a Little While

Lawyers who want to date former clients should thus wait until the entire action is over before starting the relationship. Just because representation ceases doesn't mean the ongoing duties cease.

So how long do you have to wait before you can date a former client? There's no definitive time period, or even a guideline, except that lawyers should use the action itself, not the representation, as their benchmark, and should use caution. In the case of the Louisiana attorney, dating former clients involved in a divorce proceeding was especially troublesome to Knoll: "At the very least, the relationship might increase acrimony between the spouses and impact issues such as child support and property settlements."

If the chemistry is just too much to ignore, and you can't resist that meet-cute, at least resist it until the case is over. And, as always, use your best judgment in determining whether a relationship between even a former client would cause you to perform your duties in a less than competent way.

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