I’m Too Sexy . . . For My Client! New Rules on Sexual Relations Between Attorneys and Their Clients

Following years of drafting, review and revision, the California Supreme Court ordered new Rules of Professional Conduct (“Rules”) to go into effect November 1, 2018. This was the first such comprehensive overhaul of the Rules since 1989, and brought them more into line with the American Bar Association (“ABA”) Model Rules, albeit with a distinct California flavor. The numbering of the new Rules shadows the numbering of the ABA Model Rules to make it easier for out-of-state attorneys to find applicable rules.

Several of the new Rules provide entirely new requirements for California attorneys, or codify previously “unwritten” requirements. A key change involves the issue of intimate relations with clients.

Intimate Relations With Clients

New Rule 1.8.10 forbids sexual relations with a current client who is not a spouse or registered domestic partner, unless there was a consensual relationship already in place prior to the formation of the attorney-client relationship.[1] “For purposes of this rule, ‘sexual relation’ means sexual intercourse or the touching of an intimate part of another person for the purpose of sexual arousal, gratification, or abuse.”[2] “If a person other than the client alleges a violation of this rule, no Notice of Disciplinary Charges may be filed by the State Bar against an attorney under this rule until the State Bar has attempted to obtain the client’s statement regarding, and has considered, whether the client would be unduly burdened by further investigation or a charge.”[3] Thus if an alleged violation is reported by a third party or non-client, the State Bar will not file a Notice of Disciplinary Charge until after obtaining the client’s side of the story.

Although this rule does not apply to a consensual pre-existing sexual relationship between an attorney and his/her client, a comment to the rule notes the attorney must comply with all other applicable rules, listing as examples new Rule 1.1 (Competence), new Rule 1.7 (Conflicts of Interest) and new Rule 2.1 (states lawyer’s role as “Advisor”).[4] Another comment states that when the client is an organization, new Rule 1.8.10 “applies to a lawyer for the organization (whether inside counsel or outside counsel) who has sexual relations with a constituent of the organization who supervises, directs or regularly consults with that lawyer concerning the organization’s legal matters.”[5] A third comment notes that New Rule 1.8.10 imposes obligations different than those imposed under Business and Professions Code section 6106.9, including the requirement under that statute that a complaint be verified.[6]

The previous rule, 3-120, barred attorneys from having sex with clients if the act was the result of coercion, intimidation or undue influence, or considered a form of payment for services rendered, or where continued representation after sexual relations would result in incompetence.[7] The Commission for the Revision of the Rules of Professional Conduct (“Commission”) considered whether to retain this rule or to adopt the approach in new Rule 1.8.10 that follows ABA Model Rule 1.8(j).[8] The Commission believed that California’s previous rule made it difficult to prove a violation in the typical circumstance of consensual sexual relations because the previous rule was not a bright-line standard.[9] The Commission noted the previous rule also prohibited sexual relations that were not consensual as well as improper conduct seeking sexual relations that may or may not result in the occurrence of any sexual relations; for example, relations sought or obtained by coercion or as a quid pro quo for receiving legal services.[10] Although new Rule 1.8.10  no longer includes these aspects of the previous rule, attorneys continue to be subject to discipline for such misconduct under both Business and Professions Code § 6106 (acts constituting moral turpitude) and § 6106.9, which is the statutory analog to previous rule 3-120.[11]

Returning to the issue of the difficulty in proving a violation in the typical circumstances of consensual sexual relations, the Commission noted, “where consensual sexual relations occur, the State Bar must prove that the relations caused the lawyer to perform legal services incompetently.”[12] “While this might represent a regulatory policy of imposing a least restrictive prohibition on conduct protected under a constitutional right of privacy, it imposes a complexity that is likely frustrating enforcement.”[13] Although the general prohibition in new Rule 1.8.10 is more restrictive than the previous rule in regards to consensual sexual relations, it is not believed to be unconstitutional. The State Bar inquired on more than one occasion with other jurisdictions that have the same or similar rule to Model Rule 1.8(j) (most recently in 2012) as to whether their rules had been challenged based on a constitutional right to privacy.[14] No jurisdiction indicated a constitutional challenge and the published disciplinary case law of other states did not show any such challenges.[15] The Commission’s belief the previous rule’s complexity was likely frustrating enforcement was supported by the fact there are no published California disciplinary cases applying previous Rule 3-120.[16]

The potential for the previous rule requirements to frustrate enforcement became apparent on close examination of California’s duty of competent representation.[17] Mere negligence is not a violation of the duty of competence, Lewis v. State Bar (1981) 28 Cal.3d 683, 688, and thus even if an attorney engaged in consensual sexual relations that caused an act of simple negligence in the performance of a legal service, the attorney could not be held to have violated previous Rule 3-120(B)(3).[18] Under new Rule 1.8.10, this outcome should be different because all consensual sexual relations arising during the lawyer-client relationship will constitute a rule violation regardless of whether the lawyer provided competent legal services.[19]

The Commission also believed that this bright line prohibition would have a “salutary deterrent effect” not present in the previous California rule.[20] Public commentators provided anecdotal evidence of misconduct that was not deterred by the previous rule.[21] In addition, other professions, such as psychotherapists, have stricter rules that are more protective.[22] By comparison with the restrictions in those professions, retaining the previous rule could diminish public confidence in the legal profession.[23]

As initially drafted, Rule 1.8.10 would have also eliminated an express exception in the previous rule that permitted sexual relations between lawyers and their spouses. The Commission noted that: (1) most other jurisdictions do not have an express spousal exception but have not experienced known problems; and (2) a spouse who later becomes a client would fall under the exception for sexual relations that predate a lawyer-client relationship.[24] After comment, the Commission added an exception for spouses and registered domestic partners.[25]

Rule 1.8.10 retains the definition of sexual relations in the previous rule. This is a departure from the rule adopted in most jurisdictions, but the Commission believed it was warranted because the definition promotes compliance and because the same definition appears in the statutory prohibition on sexual relations with a client (Bus. & Prof. Code § 6106.9(d)).[26] In addition, new Rule 1.8.10 includes a comment (Comment 3) that provides an express reference to the statutory prohibition.[27]

Paragraph (c) of Rule 1.8.10 is intended to value the privacy rights of a client in those circumstances where a person other than the client alleges a violation of the rule.[28] Paragraph (c) is derived in part from the Commission’s consideration of a comparable rule provision in Minnesota.[29]

Rule 1.8.10 should make it easier to determine and prosecute violations, and provide more clarity for lawyers and clients in day-to-day practice. Going forward we will see if, unlike the previous rule, this rule actually results in enforcement and prosecution.

Disclaimer: The contents of this article are intended to convey general information only and not to provide legal advice or opinions. The contents of this article should not be construed as, and should not be relied upon for, legal advice in any particular circumstance or fact situation.  No action should be taken in reliance on the information contained in this article and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this article to the fullest extent permitted by law.  An attorney should be contacted for advice on specific legal issues.

[1] CRPC, Rule 1.8.10(a).
[2] CRPC, Rule 1.8.10(b).
[3] CRPC, Rule 1.8.10(c).
[4] CRPC, Rule 1.8.10, comment 1.
[5] CRPC, Rule 1.8.10, comment 2.
[6] CRPC, Rule 1.8.10, comment 3.
[7] RPCSBC, Rule 3-120.
[8] CRPC Rule 1.8.10, Executive Summary, p. 1.
[9] Id.
[10] Id., fn. 1.
[11] Id.
[12] CRPC Rule 1.8.10, Executive Summary, p. 1.
[13] Id.
[14] Id., fn. 2.
[15] Id.
[16] CRPC Rule 1.8.10, Executive Summary, p. 1, fn. 3.
[17] CRPC Rule 1.8.10, Executive Summary, p. 1.
[18] CRPC Rule 1.8.10, Executive Summary, p. 2.
[19] Id.
[20] Id.
[21] Id.
[22] Id.
[23] Id.
[24] Id.
[25] Id.
[26] Id.
[27] Id.
[28] Id.
[29] Id.

Disclaimer: The contents of this article are intended to convey general information only and not to provide legal advice or opinions. The contents of this article should not be construed as, and should not be relied upon for, legal advice in any particular circumstance or fact situation.  No action should be taken in reliance on the information contained in this article and we disclaim all liability in respect to actions taken or not taken based on any or all of the contents of this article to the fullest extent permitted by law.  An attorney should be contacted for advice on specific legal issues.