Lawyers in California may face disciplinary measures for having sex with their clients if a new revision to the State Bar's ethics rules passes. California lawyers are split over these proposed revisions. Those supporting the blanket ban said that any sexual contact between an attorney and a client is potentially coercive due to the inherently unequal nature of relations between the two. However, opponents of the initiative say it is uncalled-for and an unconstitutional invasion of their privacy.
The move, which is being introduced as part of the first overhaul of California's Rules of Professional Conduct since 1987, is aimed at bringing California in line with other the U.S. states where similar restrictions are in place. Seventeen states currently have a ban in place, along the guidelines established by the American Bar Association, with an exception if the sexual relationship preceded the attorney-client relationship.
Currently, it is not a violation of the State Bar ethics code for lawyers to have a sexual relationship with a client as long it is consensual. California only outlaws lawyers coercing a client into sex or demanding sex in exchange for legal representation, and also prohibits a sexual relationship if it prevents a lawyer from providing her client with competent representation. See California Rule of Professional Conduct 3-120, Sexual Relations with Client.
The new proposed rule says, "A lawyer shall not engage in sexual relations with a client unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced." The proposed rule is modeled after Rule 1.8 (j) of the ABA Model Rules of Professional Conduct. Justice Lee Smalley Edmon, who heads the ethics commission in charge of the changes, wrote in the California Bar Journal that the goal is to "promote trust and confidence in the legal profession and the administration of justice."
After a public comment period this fall revealed concerns about abuse of the proposed sex ban, it was amended to include language that explicitly allows sex between a lawyer and his or her spouse or domestic partner, even if the spouse or domestic partner is a client, as well as a stipulation that prohibits a third party— someone who is not the client—from pursuing disciplinary charges over alleged inappropriate sexual contact between a client and lawyer.
The State Bar's ethics commission is proposing an outright ban on sex between lawyers and clients.
Opponents of the ban, including the Los Angeles County Bar Association's ethics committee, say it is unnecessary and would be struck down as an unconstitutional violation of constitutional rights to privacy, sexual relations, and free association. "No empirical or even reliable anecdotal evidence shows a ban is needed to protect the public or regulate the legal profession," James Ham, another lawyer on the commission, said in a dissent filed with the commission. "Proponents of a complete ban cannot articulate why a lawyer should be disciplined for sexual relations with a mature, intelligent, consenting adult, in the absence of any quid pro quo, coercion, intimidation or undue influence," he wrote.
Additionally, a blanket ban on attorney-client sex could be used as fodder in malpractice lawsuits against attorneys. While State Bar disciplinary proceedings cannot serve as the sole basis for a lawsuit, a violation of legal ethics can be used as ammunition to support such a lawsuit.
Proponents of the new rule point to the fact that between September 1992 and January 2010, the State Bar investigated 205 complaints of misconduct under the current sex restriction. However, it imposed discipline in only one case. The Office of General Counsel, which supports the rule change, said those figures demonstrate the need for a very clear prohibition. It would no longer be necessary to prove the sexual relationship was the result of coercion, or that it negatively affected the lawyer's performance. A rule that is objective rather than subjective would be much easier to enforce, supporters say. A sex ban would place attorneys under strictures similar to those that govern psychologists and psychiatrists.
Attorneys who violate the State Bar's regulations are subject to discipline that could lead to the loss of their licenses to practice law in California.
The rule change regarding sexual relations with clients is one of 68 proposed new and amended rules of conduct for California lawyers. Among the other proposed rule changes and additions:
- New guidelines for lawyers who are dividing fees related to a referred client.
- New guidelines for attorneys working with clients who have diminished mental capacity.
- Updates to the rules governing advertising and discrimination or harassment claims against attorneys.
Each 68 of the proposed new and amended rules will go to the California Supreme Court by the end of March, and must be approved by the Court before they take effect.