Right after “The client is always right,” the oldest adage in commerce is “Don’t mix business with pleasure.” In the legal profession, that topic has become a hot-button issue. The California Bar Association, the nation’s largest, is overhauling ethics rules for state lawyers for the first time in 30 years. A few attorneys’ feathers have been ruffled by a proposal that would open Golden State lawyers up to discipline for having sex with clients.
Currently, California lawyers are barred from coercing a client into sex or demanding sex in exchange for legal representation. Many would call such actions by any individual “extortion.” But because the ethics rules have not been updated since Ronald Reagan was president, and L.A. Law was in its first season on NBC, the bar thought the time had finally come to tweak a few rules.
Supporters of the proposed sex ban say the relationship between an attorney and client is inherently unequal. As my old ethics law professor would say, any sexual relationship between a lawyer and client “does not pass the smell test.” However, there are attorneys who believe such a ban is an unjustified invasion of privacy protected by the Constitution.
So why is this proposal such a big deal? It is important because attorneys who violate the state bar’s regulations are subject to discipline that could lead to the loss of their license to practice law in California.
The sex ban has even divided the state bar’s rules-revision commission. Proponents of the ban note that similar restrictions are in place in other states’ bar associations. In fact, according to an American Bar Association (ABA) committee, 17 states have a boilerplate sex ban drafted by the ABA.
Like the ABA’s sex-ban draft, California’s proposal creates an important exception. If the sexual relationship preceded the attorney-client relationship, then the lawyer would not be in violation.
The commission crafting the proposal said action was necessary because the current rule regarding sex is not working. Being good lawyers, the commission presented the following statistic as evidence: Between September 1992 and January 2010, the California state bar investigated 205 complaints of misconduct under the current sex restriction, according to an analysis of state bar data that accompanied the proposal. Perhaps a bit surprising is that the state bar imposed discipline of an attorney in just one case. A .005 batting average for the state bar is not very good.
The current California Bar rule forbids sex if it causes the attorney to “perform legal services incompetently.” To avoid controversy, you may insert your own joke here.
However, under the proposed rule, 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.
There are rule opponents who believe the ban is an overreach by the state bar. One large and vocal critic is the Los Angeles County Bar Association’s ethics committee. The LACBA’s ethics committee has stated the sex-ban proposal is unnecessary. For good measure, the committee believes the new proposal would be struck down as an unconstitutional violation of fundamental privacy rights.
The California State Bar revisions commission softened the proposal at the October meeting to create an exception for lawyers’ spouses or registered domestic partners, who cannot have where they work restrained by a bar rule. The proposal changes also required the state bar to consider whether an attorney’s client would be “unduly burdened” by an investigation of sexual misconduct if someone other than the client filed the complaint.
The state bar’s board of trustees approved an additional public comment period on the sex-ban rule. The rules commission has until the end of March 2017 to get the board’s approval for the proposals. The board will then send the new ethics rules proposal to the California Supreme Court, which will have final say on the changes.