As noted in our ever-popular posts Lawyers Lusting After Clients and Their Spouses and Addendum to Lust, forum shopping should be on your mind if you’re looking for some nookie from a client. California may soon become one of the “don’t-even-think-about-it” states.
The California Bar Association has proposed that any sexual relationship arising between a lawyer and his/her client during the course of the representation be prohibited by the California Code of Ethics. For those of you under 30 years old, you may be scrutinizing that proposal with incredulity. Yes, indeed, surprisingly enough, that practice is allowed in many states, including, at least arguably, up till now in California. Muir was cited in an article on the proposed change.
To further expand, the current California rule bars lawyers from coercing sex with a client or demanding sex in exchange for legal representation and also bars sex with clients if the relationship causes the lawyer to perform legal services incompetently. Hmmm. Looks like lots of wiggle room there for a tenacious lawyer. The state bar commission notes that of 205 complaints, the bar undertook disciplinary action in only one instance, which it considers evidence that the old formulation is not adequately protecting clients.
The proposed change, modeled after Rule 1.8 (j) of the ABA Model Rules of Professional Conduct, bans any sex with a client unless there was a sexual relationship before the representation (also an exception in 17 other states), with California specifically allowing advice to spouses and registered domestic partners. It also explicitly prohibits a third party — someone not the client — from pursuing disciplinary charges over any alleged sexual impropriety, just to minimize the angry husband/boyfriend fallout. Privacy and the absolution of consent is cited by lawyers against the proposal, which will have to be approved by the California Supreme Court and bar commission trustees.
Forewarned is forearmed.