SECTION 16. Prohibition against dating, romantic, or sexual relations with a client. – A lawyer shall not have dating, romantic, or sexual relations with a client during the engagement, unless the consensual relationship existed between them before the lawyer-client relationship commenced. (2023 Code of Professional Responsibility and Accountability or CPRA)
Under this section, lawyers are prohibited from dating or having romantic or sexual relations with a client.
The no client dating rule is subject to the exception: “unless the consensual relationship existed between them before the lawyer-client relationship commenced.”
There are two possible ways to read the exception:
1) The lawyer and the client are in a romantic relationship, and it continued on/after the commencement of the engagement.
2) The lawyer and the client had a past romantic relationship which ended but was rekindled on/after the commencement of the engagement.
There is no dispute that No. 1 is well covered by the exception.
However, is No. 2 also covered?
If the purpose of the rule is to ensure that lawyers do not take advantage of their position or does not exercise any form of undue advantage, then there is a strong case to be made that No. 2 is not covered by the exception.
The main difference between No. 1 and No. 2 is that, in No. 1, it would be unfair or unreasonable, to require the lawyers to terminate a relationship so that they could represent someone that they currently are in a relationship.
On the other hand, in No. 2, the romantic relationship was in the past. Meaning, at/during the time that they accepted the engagement, the lawyer and the client had no romantic relationship and thus dealt with each other at arm’s length. Otherwise stated, such a lawyer is on the same boat as lawyers in the general rule against no dating clients, i.e., lawyers who do not have a prior romantic history with a client and subsequently enters into one after the engagement.