Written by The Business Journal Staff
(AP) — The State Bar of California approved an ethics rule that would subject lawyers to discipline for having sex with their clients.
The bar’s Board of Trustees passed the rule Thursday as part of a long-awaited overhaul of attorney conduct standards that revised or crafted 70 ethics rules. All the new rules are now before the California Supreme Court, which has final say over them.
California currently bars attorneys from coercing a client into sex or demanding sex in exchange for legal representation. The new rule would completely ban sex between lawyers and clients with some exceptions. More than a dozen other states have a similar blanket sex ban, but California’s proposal was nonetheless divisive.
Supporters said the relationship between a lawyer and client is inherently unequal, so any sexual relationship is potentially coercive. But some attorneys said the blanket ban was an unjustified invasion of privacy.
James Ham, an attorney on a state bar commission that worked on the rules, argued that there was no empirical or even reliable anecdotal evidence that a full ban was needed to protect the public or regulate the legal profession.
Daniel Eaton, another member of the commission, said the existing client sex rule wasn’t working. He pointed to a lack of disciplinary action against attorneys as evidence.
Between September 1992 and January 2010, the state bar investigated 205 complaints of misconduct under the current sex restriction, according to an analysis of data that accompanied the proposal. It imposed discipline in only one case.
The revisions commission modified the proposal at its meeting in October to create an exception from the sex ban for lawyers’ spouses or registered domestic partners. It also required the state bar to consider whether a client would be “unduly burdened” by an investigation of sexual misconduct if someone other than the client filed the complaint.
The rule also exempts sex between a lawyer and client when the sexual relationship preceded the professional relationship.
The bar’s ethics rules for attorneys were last fully revised in 1987. Lawyers who violate the regulations are subject to discipline ranging from private censure to loss of their legal license.
Other approved changes would allow the state bar to discipline attorneys for discrimination even without a separate finding of wrongdoing. The current rule requires a final determination of wrongful discrimination in a lawsuit or other proceeding before the state bar can take action.
Still another change would bring California in line with other states by subjecting prosecutors to discipline for failing to turn over evidence they know or reasonably should know would help the defense.