Lawyers in California may face disciplinary measures for having sex with their clients if a new revision to the state bar’s ethics rulebook passes.
The bar currently forbids all attorneys from coercing clients into sexual activity or asking for sex as payment for legal services. It also prohibits a sexual relationship if it prevents a lawyer from providing her client with competent representation. But a proposed change to the ethics rules, which are undergoing a major update for the first time since 1987, would ban all attorney-client sex unless their sexual relationship preceded their legal one. There would also be an exception for spouses and domestic partners.
Advocates of the rule change believe the nature of an attorney-client relationship creates an uneven power dynamic that makes true, unburdened consent tricky to define and achieve. Those who oppose the proposed update believe that a total ban would constitute an unwarranted invasion of privacy.
“The sex ban has divided the rules revision commission, though similar restrictions are in place in other states,” the Associated Press reports. “As of May 2015, 17 states had adopted a blanket sex ban drafted by the American Bar Association, according to an ABA committee that looked at implementation of the group’s ban.” Punishment for a breach of this kind of ethics rule can be as minimal as a private censure and as severe as total disbarment in the lawyer’s state of practice.
One major driver of the proposed ban is the fact that it’s hard to verify attorney-client sexual coercion and even harder to prove that a sexual relationship hampered an attorney’s ability to serve his client. From September 1992 to January 2010, there were 205 registered accusations of misconduct under the existing sex rule in California. Only one resulted in attorney discipline.
But critics say there’s no need to draw a strict boundary for attorneys, since there’s no unequivocal proof that sexual relationships with clients are inherently coercive or negatively affect legal representation. “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,” one rules revision commission member wrote in a dissent. If the new sex ban is approved by the bar’s board of trustees, the California Supreme Court will have to either approve or reverse it next year.
