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The California Bar Wants to Keep You From Screwing Your Clients -- Literally

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By Casey C. Sullivan, Esq. on November 29, 2016 12:00 PM

The State Bar of California is currently considering a radical change to the state's Rules of Professional Conduct: a bar on lawyer-client sex.

Under the current rules, lawyers are allowed to sleep with their clients, so long as they do not coerce them into the sack or condition representation on sexual relations. (Lawyers must end representation if their lusty lawyer-client relationship interferes with competent representation as well.) The new rules, if adopted, would put an end to California's permissiveness, prohibiting virtually all attorney-client lovemaking.

The End of Free Love in California?

California currently takes a fairly "hands off" approach to attorney-client sex. Rule 3-120 allows for sexual relations with clients, with the caveat that a lawyer shall not:

(1) Require or demand sexual relations with a client incident to or as a condition of any professional representation; or
(2) Employ coercion, intimidation, or undue influence in entering into sexual relations with a client; or
(3) Continue representation of a client with whom the member has sexual relations if such sexual relations cause the member to perform legal services incompetently in violation of rule 3-110.

California's position on attorney-client sex is also fairly unique. Most states have long prohibited sexual relationships between lawyers and their clients. Wisconsin, for example, prohibits sex with clients -- though when that sex involves a three-way with a client's wife, things get more complicated.

Many of those state bans are based on ABA Model Rule 1.8(j), which states that:

A lawyer shall not have sexual relations with a client unless a consensual sexual relationship existed between them when the client-lawyer relationship commenced.

Should California's proposed changes go through, the state bar would adopt substantially the same rule, which exceptions for lawyers who have their spouses and domestic partners as clients.

A Bright-Line Standard on Attorney Sex

The change is needed, according to the Bar's Commission for the Revision of the Rules of Professional Conduct, because the current rule "renders it difficult to prove a violation" given the lack of a bright-line standard. The Commission explains:

For example, where consensual sexual relations occur, the State Bar must prove that the relations caused the lawyer to perform legal services incompetently. While this might represent a regulatory policy of imposing a least restrictive prohibition on conduct protected under a constitutional right of privacy, it imposes a complexity that is likely frustrating enforcement.

Out of 205 investigated complaints dealing with client sex over an 18-year period, for example, only one investigation lead to disciplinary action.

Still, not all lawyers are happy about the no-sex rule. Commission member James Ham dissented from the proposed change, saying that the current rule "articulates a proper balance that protects the public against unethical lawyer conduct, while respecting the rights of citizens to be free from overly intrusive and overbroad regulation of private affairs between consenting adults."

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