In California, lawyers can have sex with their clients without facing disciplinary action.
Under the current rules of the state's bar association — the largest such group in the country, according to its website — sex between attorneys and their clients is allowed as long the lawyer does not "employ coercion, intimidation, or undue influence" or "perform legal services incompetently" as a result of the sexual relationship.
But that rule could change. For the first time since 1987, the California State Bar is considering a flat-out ban on sex between lawyers and the people they represent, with exceptions for sexual relationships that existed before the person became a client.
Some lawyers oppose the proposed rule change, saying it would violate their privacy.
The bar association says such a ban is "the approach used in most jurisdictions" in the U.S. and is part of an ethics rule overhaul more than two years in the making that is due to be completed by March 2017.
The sex-rule change is one of 68 proposed new and amended rules of conduct for California lawyers. Justice Lee Smalley Edmon, who heads the ethics commission in charge of the changes, wrote in the California Bar Journal that the goal is to "promote trust and confidence in the legal profession and the administration of justice."
The commission noted in its executive summary that the proposed sex-rule change is based on a model rule created by the American Bar Association.
The commission writes:
"The Commission believes that California's current rule renders it difficult to prove a violation in the typical circumstance of consensual sexual relations. ... For example, where consensual sexual relations occur, the State Bar must prove that the relations caused the lawyer to perform legal services incompetently [which] imposes a complexity that is likely frustrating enforcement. ...
"In addition, other professions, such as psychotherapists, have stricter rules that are more protective. By comparison with the restrictions in those professions, retaining the current rule could diminish public confidence in the legal profession."
After a public comment period this fall turned up concerns about abuse of the proposed sex ban, it was amended to include language that explicitly allows sex between a lawyer and his or her spouse, even if the spouse is a client, as well as a stipulation that prohibits a third party — someone who is not the client — from pursuing disciplinary charges over alleged inappropriate sexual contact between a client and lawyer.
The Associated Press reported that at an October meeting to discuss the new rule, attorney Daniel Eaton said the lack of disciplinary action against attorneys who have sex with clients is evidence that the current rule is not sufficient.
"Between September 1992 and January 2010, the state bar investigated 205 complaints of misconduct under the current sex restriction, according to an analysis of state bar data that accompanied the proposal," the wire service reported. "It imposed discipline in one case."
At least one member of the ethics commission, James Ham, argued against the rule change. "The existing 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," he wrote in a dissenting opinion included in the executive summary released to the public.
Ham disagreed with the fundamental assumption of the new rule — that "all attorney-client relationships involve unequal bargaining power," which he wrote "does not apply in many legal relationships." He did not specify what types of legal relationships do or do not involve such a power imbalance.
Ham noted he is not alone in his dissent, writing that the Los Angeles County Bar Association agreed with his opposition to the new rule. The association has not publicly expressed an opinion on the issue.
Among the other proposed rule changes and additions:
All the proposed rules will go to the California Supreme Court by March, and must be approved by the court before they take effect.
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