Sexual relations with current client (Rule 1.8.10)

Special Coverage

PROPOSED RULES OF PROFESSIONAL CONDUCT

What ethical rule should govern sexual relations between lawyers and their clients?

In 1992, the State Bar of California became the first in the nation to adopt an ethical rule addressing sexual relations between lawyers and their clients. Current Rule of Professional Conduct 3-120 permits attorneys to have sex with their clients unless: (1) the attorney conditions the representation of the client on submission to sexual demands; (2) the attorney uses "coercion, intimidation, or undue influence" to get the client to submit to sexual demands; or (3) continued sexual relations with the client will cause the attorney to violate the attorney's duty to the client to perform legal services competently.

In 2002, the American Bar Association adopted a new subdivision (j) to Model Rule 1.8, dealing with conflicts of interest between lawyers and current clients. That provision prohibits a lawyer from having sex with a client "unless a consensual relationship existed between them when the client-lawyer relationship commenced." Some 18 jurisdictions subsequently adopted 1.8(j) verbatim and another 16 adopted it with modifications.

The contrast between California's permissive rule on the topic and the more restrictive rule now in effect in the large majority of other jurisdictions has flipped California from a leader on this fraught ethical area to a laggard.

And the existing rule hasn't worked. In the 25 years since the adoption of Rule 3-120, there have been virtually no successful disciplinary prosecutions under the rule.

The Rules Revision Commission overwhelmingly voted to recommend to the California Supreme Court a proposed new rule that will bring California's "sex with clients" rule more in line with the rule in most other jurisdictions. Proposed Rule 1.8.10 would prohibit sexual relations between a lawyer and a client who is not the lawyer's spouse or with whom the lawyer did not have a sexual relationship that predated the establishment of the lawyer-client relationship.

The commission's work on the proposed rules was guided - in my view, bounded - by a five-point charter. Proposed Rule 1.8.10 satisfies each principle of that charter by: (1) promoting confidence in the legal profession and ensuring adequate protection to the public; (2) setting forth a clear and enforceable disciplinary standard; (3) eliminating an unnecessary difference between California's rule, on the one hand, and the ABA Model Rule subsection and rules adopted by the majority (34) of the jurisdictions whose rules address this subject, on the other hand; (4) eliminating ambiguity and uncertainty in the current rule in favor of a bright-line rule; a (5) eliminating an unnecessary comment to the rule

The current rule is defective in every one of these respects. The terms of the commission's charter make it inconceivable that the commission would have adopted existing Rule 3-120 from scratch. It would have been equally inconceivable, therefore, for the commission to have retained the current rule as proposed by many of those who submitted public comments to the commission's proposed rule.

In drafting the proposed rule, the Rules Revision Commission carefully considered issues raised by the state and federal constitutional right to privacy. The commission also considered obligations imposed under Business and Professions Code Section 6106.9, titled "Sexual Relations between Attorney and Client." I prepared a memorandum for the commission analyzing what I acknowledged were the serious and legitimate statutory and constitutional concerns raised by the proposed rule. That memorandum is publicly available.

My analysis led me to conclude that these concerns were not insurmountable. There is no definitive appellate court guidance - in any jurisdiction - directly addressing the constitutional question as it applies to a rule of legal ethics. But cf. Ferguson v. People, 824 P.2d 803, 810 (Colo. 1992), finding "no hesitation in concluding that neither the treating psychotherapist nor the psychotherapy client has a fundamental constitutional right to engage in sexual intercourse with each other during the existence of the psychotherapist-client relationship." See also Shapiro v. State, 696 So.2d 1321, 1326 (Fla.App. 1997): "There clearly is no fundamental due process right for a therapist to use therapeutic deception to engage a client in sexual activities.")

The proposed rule addresses the constitutional concerns by serving the compelling interests of protecting clients from exploitation or injury caused by their attorneys and in ensuring the objective detachment that is often demanded for adequate legal representation. The existing rule serves those interests inadequately at best.

As for Business and Professions Code Section 6106.9, Comment 3 of the proposed rule notes that the rule and the statute impose different obligations, such as the statutory requirement that a complaint under the statute be verified. It is the prerogative of the California Supreme Court to impose disciplinary rules for the legal profession that are stricter than statutory requirements. See, e.g., In re Lavine, 2 Cal. 2d 324, 328 (1935), holding that requirements for admission to the bar imposed by the Business and Professions Code "are, at best, but minimum standards unless the courts themselves are satisfied that such qualifications as are prescribed by legislative enactment are sufficient. The requirements of the Legislature in this particular are restrictions on the individual and not limitations on the courts. They cannot compel the courts to admit to practice a person who is not properly qualified or whose moral character is bad. In other words, the courts in the exercise of their inherent power may demand more than the Legislature has required." (Citations omitted.) See also Howard v. Babcock, 6 Cal. 4th 409, 419 (1993), California Supreme Court may impose higher standards on lawyers than are imposed on other professions.)

The Rules Revision Commission has proposed replacing a rule that frames a lawyer's sex with clients as "permitted unless" with a rule that frames a lawyer's sex with clients as "prohibited unless." That strikes the right balance between privacy concerns and the power dynamic of the lawyer-client relationship in a way that the current rule does not.

Rule 1.8.10 Sexual Relations With Current Client

(Proposed Rule Adopted by the Board on March 9, 2017)

(a) A lawyer shall not engage in sexual relations with a current client who is not the lawyer's spouse or registered domestic partner, unless a consensual sexual relationship existed between them when the lawyer-client relationship commenced.

(b) For purposes of this rule, "sexual relations" means sexual intercourse or the touching of an intimate part of another person* for the purpose of sexual arousal, gratification, or abuse.

(c) If a person* other than the client alleges a violation of this rule, no Notice of Disciplinary Charges may be filed by the State Bar against a lawyer under this rule until the State Bar has attempted to obtain the client's statement regarding, and has considered, whether the client would be unduly burdened by further investigation or a charge.

Comment

[1] Although this rule does not apply to a consensual sexual relationship that exists when a lawyer-client relationship commences, the lawyer nevertheless must comply with all other applicable rules. See, e.g., rules 1.1, 1.7, and 2.1.

[2] When the client is an organization, this rule applies to a lawyer for the organization (whether inside counsel or outside counsel) who has sexual relations with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization's legal matters. See rule 1.13.

[3] Business and Professions Code § 6106.9, including the requirement that the complaint be verified, applies to charges under subdivision (a) of that section. This rule and the statute impose different obligations.