Posted Feb 22, 2011 05:36 pm CST
Members of the State Bar of Texas have rejected a proposed change in the ethics rules that would have barred sex with clients.
The rule would have banned sex between lawyer and client unless they were married, or engaged in a consensual relationship that began before the representation, according to a summary (PDF) posted at the state bar website. The rule was rejected by 72 percent of the lawyers voting, according to the posted results (PDF).
The sex-with-clients proposal was grouped with two other proposed rule changes. One allows lawyers to take action to protect clients with diminished capacity. The other governs conflicts of interest created by disclosures by prospective clients.
The sex-with-clients ban was one of several proposed amendments to the Texas disciplinary rules that were presented to the state’s lawyers in the form of six ballot questions, Texas Lawyer reports. All were rejected, some by 80 percent of the vote. The Careerist noted the failed sex-with-clients ban.
Writing at his blog Defending People, criminal defense lawyer Mark Bennett says he sees no problem with the sex-with-clients ban or the two other amendments that were grouped with it. But he argues that the state law governing the ethics referendum required each amendment to be presented separately rather than in the form of “six inexplicable agglomerations of proposed rules.” Other opponents argued that Texas should wait until the ABA’s Commission on Ethics 20/20 completes its review of the model ethics rules.
What’s next? Lillian Hardwick, an Austin solo who chaired a state bar rules committee, told Texas Lawyer she hopes the state supreme court will adopt rule changes despite the lawyer vote. “The court can promulgate the rules on its own,” she said.
Hardwick elaborated in an interview with the ABA Journal. She said the Texas Supreme Court has both the inherent authority and the obligation to regulate law practice in the state. Asked why lawyers rejected the sex-with-clients ban, she said it was likely more of a protest vote over the amendment process.
“I think people got a certain amount of satisfaction from pulling the lever,” she said.
Updated on Feb. 24 to clarify that the proposed sex-with-clients ban was grouped with two other proposals and to add information from Hardwick and Bennett.