New Rules for When Lawyers Can Have Sex with their Clients

Lately Texas has been in the news on account of their presence in the World Series.  For those of us on the West Coast, we can’t help but feel some pity for their self-inflicted errors on top of a legitimate molly-wopping by the S.F. Giants.  But recently, the state of Texas has also been making headlines for other reasons.

In the legal world, Texas lawyers have recently drafted a rule governing lawyer interactions with clients.  Rule 1.13, also known as the “Sex with Clients” rule, has been causing quite a controversy over these past few months.  Texas currently does not have an ethics rule governing sexual relationships between a lawyer and their client.

The proposed rule would require that attorneys (a) won’t condition representation on requiring a client to engage in sexual relations; (b) will not solicit sexual favors as payment for fees, and (c) will not have sexual relations with a client that they are personally representing, unless the relationship is consensual and began prior to the attorney-client relationship.

Supporters of this rule argue that it will protect clients from being forced into an unwanted sexual relationship.  The drafters of the rule state that attorney-client relationships are almost always financially unequal, and that there is a danger that the lawyer will use their position for personal motives.  They also state that lawyers who get too close to their clients may end up clouding their ability to maintain professional judgment.

Not surprisingly, most of those opposed to this rule are lawyers.  They argue that the new rule would create a whole host of frivolous lawsuits by clients who claim that their attorney has taken advantage of them.

The American Bar Association (ABA) has already addressed the issue of lawyer-client sexual relations in their Model Rules of Professional Conduct.  ABA Model Rule 1.8 states that “a lawyer shall not have sexual relations with a client” (unless a consensual relationship existed between them when the client-lawyer relationship commenced).

In contrast to the Texas rule, the ABA rule is basically an all-out prohibition on lawyer-client sexual relationships.  The ABA rule was introduced in 2002 and is known as a “per se” standard.  This means that it does not contain any exceptions besides the prior relationship clause- it applies equally to all lawyer-client relationships across the board.  Every lawyer is discouraged from having sexual relations with a client under the ABA standards.

In a paper by Marcia Johnson entitled “No Sex, Please, With Clients”, the Director of the Minnesota Office of Lawyers Professional Responsibility argues in favor of a per se approach to attorney client sexual relationships.  She states that a per se rule is consistent with the standards imposed on other professions.  Doctors, social workers, and other health professionals are all subject to a per se standard when it comes to sexual relationships with clients.  Laws are all about exceptions, but ironically, it appears that the legal field is the exception when it comes to professional ethical standards.

Johnson also points out that prior to the introduction of ABA Rule 1.8, lawyer-client sexual relationships were governed under the general category of “conflict of interest” rules in the Rules of Professional Conduct.  Under conflicts of interests rules, a per se standard is also the norm.  For example, under ABA standards, lawyers are flatly prohibited from obtaining media rights to the client’s legal case while they represented them.  The conflict of financial interests regarding media rights would be enough to “contaminate” the attorney-client professional relationship, much in the way that a sexual relationship would.

Some states that follow a per se standard like the ABA include Oregon and Minnesota.  States that have Texas-style rules include, of all places, California.  California’s rule contains exceptions similar to that of Texas, including one that allows such relationships so long as they are not the result of “coercion or undue influence”.  That is a much more lenient standard than a per se approach.  It appears that the two states actually do have something in common besides penance, I mean, pennants.

Personally, I am more in favor of a per se approach when discussing lawyer-client interactions.  After all, if the issue of literary rights is enough to taint professionalism, isn’t having an intimate relationship with a client more than enough?  Also, why should lawyers be subject to different standards than other professional guilds?  Exceptions like the ones contained in Texas’ rule simply create more chances for excuses.  To me a per se approach is clearer, less complicated, and provides little “wiggle room” for error: simply don’t do it.

Professionals should be held to higher and clearer ethical standards, especially those professionals who represent the law of the land.  Understandably, the legal profession does not require physical contact as in the medical field.  But that does not mean that lawyers should be excused from representing their clients in a reasonable manner.

Another problem with Texas’s rule is the way it portrays lawyers.  The rule makes it seem like all lawyers in general are unscrupulous, money-hungry pimps who abuse their positions of influence (though a number of them probably are).  In my opinion the rule subtly suggests that exchanging favors for fees is just standard practice for all attorneys.

On a different note, part of this particular ethical issue lies in the fact that many clients involved in violations do not report such incidences to authorities.  As one legal ethics reform lawyer put it, “victims of abuse should complain loudly to authorities, even if offered restitution from their lawyer”.  Such courageous client responses might help prevent abuses more than any rules ever could.

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