Out of Bounds: Boundary Issues in the Practice of Law
| Publication year | 2014 |
| Pages | 57 |
| Citation | Vol. 43 No. 12 Pg. 57 |
Articles
Professional Conduct and Legal Ethics
Out of Bounds: Boundary Issues in the Practice of Law
By Amy C. DeVan, Alan C. Obye
Professional Conduct and Legal Ethics articles are sponsored by the CBA Ethics Committee. Articles published here do not necessarily reflect the legal interpretation of the Committee.
Coordinating Editor
Stephen G. Masciocchi, Denver, of Holland & Hart LLP—(303) 295-8000, smasciocchi@hollanclhart. com
About the Authors
Amy C. DeVan is Executive Director of the Colorado Independent Ethics Commission and a former Assistant Regulation Counsel at the Colorado Supreme Court Office of Attorney Regulation Counsel —devanamy@gmail.com. Alan C. Obye is a staff attorney at the Colorado Supreme Court Office of Attorney Regulation Counsel— a.obye@csc.state.co.us. Both authors served as counsel or worked on several of the cases discussed in this article. The Office of Attorney Regulation Counsel represented the People of the State of Colorado in all cases discussed.
This article discusses the Colorado Rules of Professional Conduct and case law governing personal interest conflicts of interest and related ethics issues. Personal interest conflicts arise when lawyers fail to respect boundaries with clients and others.
Colorado lawyers face questions about boundaries every day. A lawyer may be physically attracted to a client, asked to loan funds to a client, or contemplate asking a client for a loan. These scenarios require a lawyer to proceed with caution and adhere carefully to the Colorado Rules of Professional Conduct (Rules). Other less obvious personal issues also raise ethical dilemmas.
Lawyers must ask themselves whether to proceed when a like able client tells a story that just does not add up. They must decide how to advise a domestic relations client when, for example, she is required to appear in court for a mandatory hearing but says she is scared of her ex-husband. They must choose when to have the tough conversation with a client about the realities of his case. When lawyers believe a case is no longer viable, they must tell the client.
All these situations implicate a lawyer's personal interests to one extent or another. These problems are among the toughest questions lawyers face, more frequently than one might think, and the answers may be less clear in the heat of the moment. Handling these dilemmas incorrectly may lead to discipline or a finding of professional liability. Learning to recognize the difficult questions and addressing them properly are critical to meeting our obligations as licensed professionals.
This article explores some of the ethical issues implicated by boundary problems and some of the cases involving violations of the relevant Rules. These issues include sex with clients, business transactions with clients, and other circumstances where a lawyer's personal interests might cloud the lawyer's objectivity.
The Colorado Rules of Professional Conduct
Boundary issues must be considered in the context of the Rules.[1] Boundary issues can implicate a number of Rules, but a handful most often appear in case law.
> Rule 1.7 sets forth the general rules governing concurrent conflicts of interest. Rule 1.7(a)(2) (formerly Rule 1.7(b)) governs personal interest conflicts. It provides that a lawyer has a concurrent conflict where there is a
significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibility to another client, a former client or a third person, or by a personal interest of the lawyer.[2]
> Rule 1.8 contains specific rules about conflicts of interest. Rule 1.8(a) provides that a lawyer shall not enter into a business transaction with a client or knowingly acquire an ownership, possessory, security or other pecuniary interest adverse to a client unless specific conditions are met, including informed consent confirmed in a writing signed by the client. Rule 1.8(e) prohibits a lawyer from providing financial assistance to a client except in limited circumstances, such as advancing costs.[3] Rule 1.8(j) forbids a lawyer from having "sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced."
> Rule 1.16(a)(1) requires a lawyer to withdraw from a representation if the representation will result in a violation of the Rules or other law.
> Rule 3.1 provides in part that:
a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.
> Rule 3.3(a) provides, among other things, that a lawyer may not make a false statement of material fact or law to a tribunal or offer evidence that the lawyer knows to be false.
> Rule 3.4(c) prohibits a lawyer from knowingly disobey[ing] an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists.
> Rule 8.4(c) provides that it is professional misconduct to engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
> Rule 8.4(d) provides that it is professional misconduct to engage in conduct prejudicial to the administration of justice.
While not an exhaustive list, these rules and their comments and annotations provide guidance for lawyers facing questions about boundaries.
Sex With Clients—Don’t Do It
One of the most obvious boundary areas for lawyers involves sex with clients. It is an area fraught with peril. By having an intimate relationship with a client, a lawyer risks not only a Rules violation but also impaired judgment. Despite the obvious pitfalls, it is not uncommon for lawyers and clients to become personally involved, probably with greater frequency than the reported cases suggest.
A hearing board and the Presiding Disciplinary Judge (PDJ) explored the issue of lawyer–client involvement in People v. Beecher.[4] In Beecher, the lawyer and his client became involved in an intimate relationship, and although they slept in the same bed and vacationed together, both denied the relationship was sexual.[5]
The board found that the lawyer’s judgment was clouded by the intimate relationship with his client. His clouded judgment caused him to inappropriately pursue a strategy that included deposing the client’s husband and adult son on issues that arose during their marriage, including the husband’s alleged sexual misconduct.[6] The lawyer
was negligent in failing to heed a substantial risk that his intimate, albeit non-sexual, relationship with his client created a conflict in representing her interests in a divorce where the legal issues involved division of property and maintenance, but not marital fault.[7]
His inability to recognize the boundary issues inherent in the relationship impaired his handling of the client’s case.
Had the representation not been clouded by the crossed boundary between the lawyer and his client, the hearing board surmised, the lawyer may have exercised more appropriate judgment in advising his client about her case. The hearing board found that the lawyer
had a duty to follow the legal and...
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