As part of its recent Review of Australian Solicitors’ Conduct Rules, the Law Council of Australia (LCA) made clear that ‘a sexual relationship or attempt to establish a sexual relationship where that conduct amounts to an abuse of a client’s trust, confidence and dependency in or on a solicitor’ raises significant questions of unsatisfactory professional conduct or professional misconduct (at p 174). The LCA further noted ‘the ethical duty to not form a relationship with a client, including a sexual relationship, is embodied in the principles underpinning a number of rules, including to maintain independence, to not bring the profession into disrepute, to act in the best interests of the client and to avoid conflicts with a solicitor’s own interests.’ We agree with this position.    

The lack of a specific proscription under general law or the professional conduct rules does not legitimise sexual relationships with clients or preclude potential disciplinary action where such a relationship interferes with your independence and other ethical duties. The courts and tribunals have recognised on several occasions that a sexual relationship can undermine a lawyer’s independence and objectivity (see Queensland Law Society, Acting for Family and Friends, citing Legal Services Commissioner v La Spina [2012] QCAT 183 and R v Szabo [2000] QCA 194. Also see Legal Practitioners Conduct Board v Morel [2004] SASC 168, and Bosgard v Bosgard [2013] FamCA 308). 

Gino Dal Pont has commented, in Lawyers’ Professional Responsibility, that a ‘client’s need for advice and protection, with its attached vulnerability, may raise the risk of emotional involvement with, or dependence on, her or his lawyer.’ The risk is even greater in family law disputes, as you may be one of the few people offering your client meaningful support. Further, a client may fear that rejecting sexual advances might impact ongoing representation (see [6.140]). 

Finally, it should not be assumed that the power-dependency dynamic always operates in favour of the lawyer (see Gino Dal Pont’s 2016 Lawyers' Professional Responsibility, at [6.140]). A sexual relationship with your client may result in you becoming dependent on your client, and thereby increase the risk that you may behave unprofessionally in order to further their interests (see Legal Practitioners Complaints Committee v Pepe [2009] WASC 39). Further, the breakdown of such a relationship creates the additional risk that your client will be unhappy with the work that you have done for them, increasing the likelihood of a complaint.