For about 20 years, the consensus has been building in the legal profession that a lawyer sleeping with his clients is not only a bad idea, but also should be prohibited by the formal ethics rules. States like California, Oregon and New York quickly adopted such a rule while other bars resisted; when the ABA added the “no sex with clients” provision to is Model Rule 1.8 in 2003, more states followed suit. Now Virginia, one of the most respected bars in the country, is considering its first pronouncement on the subject, in the form of a formal ethics opinion.
I call this the Arnie Becker Rule, after the horny divorce attorney in TV’s “L.A. Law” played by Corbin Bernsen. The majority of bar disciplinary cases involving client-lawyer nookie traditionally have flourished in the divorce field, as unscrupulous and libidinous lawyers too often treated their emotionally distraught clients as easy prey for sexual and sometimes lucrative affairs. Most in the legal profession, however, realize that starting intimate relationships with clients is as unethical for lawyers as it is for therapists, and some of the resistance to making a rule on the subject comes from the belief that other rules rendered a prohibition superfluous. Having sex with a client obviously violates one or more Model Rules of Professional Conduct, such as
Rule 1.2, which states that a lawyer must not substitute his or her judgment for the client’s, or use undue influence to influence the client’s judgment
Rule 1.7, prohibiting a lawyer from representing a client when his or her personal interests are likely to interfere with the tasks involved.
Rule 5.4, which requires an attorney to maintain independent judgment.
Rule 8.4, which prohibits conduct reflecting poorly on a lawyer’s fitness to practice law. This rule would be violated if, for example, a lawyer coerced a client into giving sexual favors, or accepted such in lieu of a fee for services.
…not to mention creating an appearance of impropriety, which, while no longer an element of most state rules, is still something that any ethical and prudent lawyer should avoid.
The debate over the proposed Virginia opinion has broken down into two camps: those who say the opinion is not emphatic enough because it states, for example, that a lawyer who exploits his position to coerce sexual favors from a client “may be found to have violated” the Bar’s prohibition against any acts that reflect poorly on the lawyer’s fitness to practice law. How, they ask, could this conduct ever not be found to be unethical? On the other side are the attorneys who object to the proposed opinion’s position that even when the sex is consensual, a lawyer would still have the burden of proof of showing that the relationship wasn’t still a violation of ethical standards.
The Virginia State Bar needn’t labor over this one, because the ethical principles are clear. Although there may be some situations in which a sexual relationship with a client wouldn’t interfere with the independent judgment of client and attorney, create an unwaivable conflict of interest for the attorney or raise the specter of impropriety, the remote possibilities of those anomalies occurring aren’t worth the trouble of leaving wiggle room in the ethics standards, whether in a rule or a formal ethics opinion..
It’s like drinking and driving, really.
If she (or he) is a client, don’t have sex with him (or her). If you’re having sex with him (or her), then don’t take her (or him) as a client.
That also goes for dating, snuggling, petting, kissing, and what Bill Clinton doesn’t think is sex, too.
UPDATE: Now California wants to make it really tough on Arnie, and a lot of California lawyers don’t like it…