Legal Ethics

California considers general ethical ban on lawyer sex with clients

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State Bar of California

The State Bar of California is proposing a general ban on lawyers having sex with clients as part of an overhaul of the state’s disciplinary rules.

The proposal would change the current rule, which bars lawyers from coercing sex with a client or demanding sex in exchange for legal representation, report the Associated Press, in a story reprinted by the Los Angeles Times, and NPR. The current California rule also bars sex with clients if the relationship causes the lawyer to perform legal services incompetently.

The proposed change, modeled after Rule 1.8 (j) of the ABA Model Rules of Professional Conduct, bans sex with clients, unless there was a sexual relationship before the representation. Seventeen states had adopted a general ban on sex with clients as of May 2015, according to the AP story. The California proposal, as modified in October, also specifically allows sex with clients who are spouses or registered domestic partners.

Daniel Eaton, a member of the state bar commission reviewing the ethics rules, backed a general ban on sex with clients at the October meeting of the commission, according to the AP story. He noted that the state bar has investigated 205 complaints about lawyer sex with clients, but took disciplinary action in just one case. He sees those statistics as proof that the current California rule isn’t working.

Another commission member, James Ham, differs with that assessment. He sees no reason to ban sex between lawyers and clients who are consulting adults, in the absence of coercion, influence or a quid pro quo.

Ham also says the bar statistics cited by Eaton are misleading. The state bar had access to only 135 files in its review if the 205 complaints, and it found that many closed cases involved “he said, she said” evidence, Ham says. “The data does not support the conclusion that results would be better with a ban,” he tells the ABA Journal in an email.

The rule change would have to be approved by the bar’s board of trustees and by the California Supreme Court.

See also: “Texas Lawyers Reject Ban on Sex with Clients”

Updated on Nov. 29 to add additional comment by Ham.

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