"Now about my fee...."

Texas lawyers have voted down a proposed ethics rule that specifically condemned attorneys having intimate relations with their clients. Naturally, the media will represent the decision as the predictable reaction of a bunch of high-rolling, fun-loving Texas legal horn-dogs to people trying to spoil the perks of their job; even the legal media has settled on a misleading headline:  “Texas lawyers reject ban on sex with clients.” But Texas lawyers don’t think that sex with clients is ethical, or want it to be ethical. Like the attorneys in many other states, they just think having a rule on this topic is bad idea. And they are right.

The proposed Rule 1.13,  Prohibited Sexual Relations, reads…

(a) A lawyer shall not condition the representation of a client or prospective client, or the quality of such representation, on having any person engage in sexual relations with the lawyer.

(b) A lawyer shall not solicit or accept sexual relations as payment of fees.

(c) A lawyer shall not have sexual relations with a client that the lawyer is personally representing unless the lawyer and client are married to each other, or are engaged in an ongoing consensual sexual relationship that began before the representation.

Like all versions of the this Rule, and there are many, it goes too far and not far enough at the same time. Everything in the Rule is arguably covered by other Texas ethics rules: using legal services to compel clients to have sex is creating creates a conflict of interest (Texas Rule 1.06; ABA Model Rule 1.7) and distorts the attorney-client relationship, and conditioning the quality of the representation on sex is violation of the lawyer’s duty of diligence and zeal; soliciting sex as a substitute for fees violates the prohibition of unreasonable fees (Texas Rule 1.04; ABA Model Rule 1.5); and the general prohibition in proposed 1.13 (c) is redundant with the combined effect of many rules, which disapprove of interference with the lawyer’s independence and the creation of a per se conflict, as the lawyer is merging a personal with a professional relationship.

On the other hand, there is nothing in the proposed Rule condemning sex with an organizational client’s attorney or other representative. Why not? All the same objections apply. And what if Bill Clinton joins the Texas Bar Association: where is the definition of “sex”? Is sex with a client’s spouse an ethical violation? (It has been found so in other jurisdictions, but no specific rule exists to prohibit it.) How about sex with the opposing attorney? A key witness? The judge? All of these have occurred, with the lawyers involved being disciplined, in most cases, using versions of the rules Texas already has.

The proposed rule also, like the versions of it in other states, seems to imply that there is no problem with an active sexual relationship between lawyer and client as long as it began before the retainer. What sense does that make? It doesn’t make sense, of course; it is just impossible to write a coherent rule on the subject of sex with clients that covers all the possible problems, situations, issues and, uh, combinations.

This is why other jurisdictions, like the District of Columbia, have also rejected the “no sex with clients rule.” As the District of Columbia Bar says in its commentary to the D.C. Rules:

…The relationship between lawyer and client is a fiduciary one in which the lawyer occupies the highest position of trust and confidence. Because of this fiduciary duty to clients, combining a professional relationship with any intimate personal relationship may raise concerns about conflict of interest, impairment of the judgment of both lawyer and client, and preservation of attorney-client privilege. These concerns may be particularly acute when a lawyer has a sexual relationship with a client. Such a relationship may create a conflict of interest under Rule 1.7(b)(4) or violate other disciplinary rules, and it generally is imprudent even in the absence of an actual violation of these Rules.

In other words, it’s wrong. Having another rule doesn’t make having sex with clients more wrong, and also tempts the very same, small group of unscrupulous lawyers 1.13 is aimed at to find ways to violate the spirit of the rule while technically being in compliance with it. There are a lot of ways lawyers can be unprofessional and unethical without running afoul of any specific rules, and there always will be. Texas lawyers know that, and they know that having sex with clients is unethical.

They also can recognize a bad rule when they see one. Texas lawyers aren’t “rejecting a ban” on sex with clients. It’s banned already in the culture of legal practice, and the rule would just muddy the issue.